C.R.No.5325 of 2007 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH C.R.No.5325 of 2007. Decided on July 06, 2009. Smt.Om Pati ..Petitioner VERSUS Babu Ram & Ors. ..Respondents CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI PRESENT Mr.Ajai Jain, Advocate, for the petitioner. Mr.Sanjiv Gupta, Advocate, for the respondents. M.M.S. BEDI, J. Defendant has preferred this revision petition under Article 227 of the Constitution of India, against the order dated July 24, 2007, passed by the Additional Civil Judge (Sr.Divn.),Hisar, dismissing the application of the petitioner under Order 7 Rule 11 read with Section 151 CPC, for rejection of the plaint and dismissal of the suit filed by respondents Babu Ram and others, praying that since the registered sale deed executed by the plaintiffs in respect of C.R.No.5325 of 2007 -2- land measuring 36 kanals 4 marlas, for consideration of Rs.7,92,000/- and the mutations entered on August 14, 2005 and September 06, 2005, have been challenged without affixing ad valorem Court fee, the suit should be dismissed or necessary direction be issued to make up the deficiency in the Court fee. The trial Court has formed an opinion that through the suit filed by the respondents-plaintiffs, they claimed that they are the owners of the suit land and that they have never sold the same to the defendant-petitioner and thus, sale deed No.1525 dated November 03, 2005, had not been executed and that the defendant- petitioner and her husband respondent no.4 have got no right in the property in dispute which is the subject matter of sale deed. Learned counsel for the petitioner has argued that the observations made by the trial Court while passing the impugned order are contrary to the ratio of the judgment of Full Bench of this Court in 1982, PLR, page 127, Niranjan Kaur Vs.Nirbigan Kaur , holding that the Court, in deciding the question of Court fee should look into the allegations made in the plaint to find out what is the substantive relief that is asked for. Where the main relief is for cancellation of sale deed and declaration, if any, is only surplusage, the case would not be covered under Section 7 (iv)(c) of the Court Fee Act, and the provision applicable would be Article 1, Schedule-I of the Court Fee Act. Counsel for the plaintiffs-respondents has submitted that since the plaintiffs have sought the main relief as C.R.No.5325 of 2007 -3- declaration and the consequential relief is just ancillary, court fee is not required to be affixed and the case would be covered under Section 7(iv)(c) and not Article 1, Schedule-I of the Court Fee Act. Learned counsel for the defendant-petitioner has argued that for adjudication of this revision petition, the nature of the suit and the allegations in the plaint are required to be looked into to determine as to what is the substantive relief asked for by the plaintiff-respondent Nos.1 to 3. Plaintiff-respondent Nos.1 to 3 have filed a suit for possession through declaration to the effect that the land measuring 452 kanals 15 marlas stands owned in equal share and the sale deed No.1525, registered on November 03, 2005, in favour of the defendant-petitioner by defendant-respondent no.4 on behalf of respondents with regard to the aforesaid land is wrong, illegal, null and void and is the result of misrepresentation which is not binding on their rights and is liable to be set aside. The plaintiffs- respondents on the strength of their title are entitled to recover the possession of the land as per law. The suit has been filed challenging the sale deed by affixing Court fee of Rs.70/-. The short question which is required to be determined is whether it was incumbent for the plaintiffs-respondents to affix court fee on the amount of Rs.7,92,000/- said to be the sale consideration. The plaintiffs claim that their maternal uncle Himat Singh (respondent No.4) has sold 36 kanals 4 marlas out of 452 kanals 15 marlas to the extent of 724/9055 in Khasra Numbers mentioned in the plaint vide registered sale deed dated November 03, 2005 in favour of the C.R.No.5325 of 2007 -4- petitioner (wife of Himat Singh). The sale deed being result of fraud, without consideration and the result of misrepresentation of facts, it has been mentioned that the sale deed will not confer any rights on the petitioner. A bare perusal of the allegations in the plaint indicates that a registered sale deed has been challenged which has been executed fraudulently by the maternal uncle of the plaintiffs in favour of petitioner. The main relief sought for is the cancellation of the sale deed and recovery of possession is just ancillary relief. The trial Court has held that the plaintiffs have sought the declaration of their title and challenge to the sale deed is only ancillary relief, as such, no ad valorem Court fee is required to be affixed. Learned counsel for the petitioner has placed reliance on Full Bench judgment in Niranjan Kaur Vs.Nirbigan Kaur, 1982, PLR, page 127, to contend that the real relief claimed by the plaintiffs is for cancellation of registered document, as such, it will be covered by Article 1, Schedule-I of the Court Fee Act, warranting the filing of ad valorem court fee. Counsel for the respondents relies upon Raj Kumar and others Vs. Shri Dadu Dayal Trust and others, 2007(2), All India Land Laws Reporter, 699, wherein in particular facts of the said case, it was observed that the court fee was required to be paid on the basis of the substantive relief claimed by the parties and mere drafting of a plaint in a particular manner cannot be made the basis of affixation of court fee but it has to be seen as to what is the substantive relief claimed by the party. A question which is now C.R.No.5325 of 2007 -5- required to be determined in the present case is as to what is the substantive relief claimed by the plaintiffs-respondents. The plaintiffs- respondents claim that they are the owners of the property and that they have never sold their share in the property through their maternal uncle (Mama) to his wife (Mami). The possession cannot be claimed by the plaintiffs-respondents unless and until the registered sale deed allegedly fraudulently executed by Himat Singh in favour of his wife Om Pati is not set aside. The plaintiffs-respondents will not be able to seek the consequential relief of possession. The substantive relief claimed in the suit is, thus, cancellation of the document which is a sale deed. It has to be declared bad in context to the subject matter of the suit. Since the cancellation of a document is the real relief claimed for and title of the plaintiffs has to be declared after setting aside the sale deed, the ad valorem court fee is required to be affixed on the sale consideration. Since the copy of the written statement filed by the defendants-respondents has not been placed on record indicating whether the consideration has been admitted or denied nor it has been brought to the notice of this Court whether the plaintiffs-respondents are capable of filing the court fee or that circumstances exist for permitting them to sue as forma paupris, without expression of opinion on the said two points, it is held that on the basis of the relief claimed, it is apparent that ad valorem court fee has to be paid as per Article 1, Schedule-I of the Court Fee Act. The appeal is allowed. C.R.No.5325 of 2007 -6- The impugned order dated 24.07.2007 is set aside. The parties are directed to appear before the trial Court on August 01, 2009, on which date the trial Court will give an opportunity to the plaintiffs-respondents to affix requisite court fee, in accordance with law, on the basis of the material facts pleaded on the record. (M.M.S.BEDI) JUDGE July 06, 2009. rkarora