C.R. 6091 of 2008 1 IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. 6091 of 2008 Date of decision:- 3.11.2009 Agroha Vikas Trust, Agroha petitioner vs Ram Bilas and others Respondent Present: Mr.Anurag Jain, Advocate Mr. Vikas Bishnoi, Advocate for respondent No.1 1. Whether Reporters of local papers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? M.M.S.BEDI,J. An application filed by the defendant- petitioner under Order 7 Rule 11, CPC stands dismissed vide impugned order dated 2.9.2008. The trial court has held that the plaintiff- respondent No.1 has not sought any decree for possession by way of specific performance, as such the plaintiff cannot be directed to affix the ad valorem court fee on the plaint. The case of the plaintiff, as per the plaint, is that plaintiff- respondent No.1 has sought a decree for declaration to the effect that he is entitled for allotment of plot No.23 on payment of balance of sale consideration of Rs.90,000/- and that he has already paid a sum of Rs. 1.00 lac and having been delivered the actual physical possession of the plot. The plaintiff- respondent claims that the defendants should be directed to accept the balance of sale consideration of Rs.90,000/- and he should be allotted the C.R. 6091 of 2008 2 plot. A decree for permanent injunction has also been prayed for by the plaintiff to restrain the defendants from alienating the plot in dispute. Learned counsel for the petitioner has vehemently argued that the plaintiff- respondent No.1 is neither claiming possession over the property nor any mention has been made about the possession of the property, as such the trial court has wrongly dismissed the application of the defendant- petitioner under Order 7 Rule 11 CPC in the absence of ad valorem court fee having been affixed on the plaint. The suit of the plaintiff- respondent No.1 is alleged to be barred by time. After hearing learned counsel for the petitioner and going through the plaint and the stage of the case, I am of the opinion the question whether the suit has to be dismissed in the absence of ad valorem court fee having been affixed by the plaintiff, is a mixed question of law and fact as the case of the plaintiff-respondent No.1 for specific performance of an agreement cannot be said to be strictly a suit for possession. The suit seems to be in the nature of a mandatory injunction seeking a direction to the defendant- petitioner to deliver the possession of the plot, the same having been agreed to be allotted to him on payment of consideration amount. Taking into consideration the totality of the circumstances, it is felt that ends of justice will be adequately met in case the plaintiff- respondent No.1 is permitted to proceed with the case. It is further observed that in case any objection regarding the court fee is raised, the same would be decided, in accordance with law, after framing a necessary issue in this regard. In case, ultimately, it is held that the ad valorem court fee is required to be affixed, it will be open to the trial court to issue a direction to the plaintiff to make good the deficiency of court fee, in accordance with law by deciding the issue of court fee. Similarly, the plea of limitation will C.R. 6091 of 2008 3 also be adjudicated upon by the trial court on the basis of facts and law. The trial court seems to have rightly not shut the doors of the court for adjudication of the questions, raised by the defendant- petitioner by dismissing the application under Order 7 Rule 11 CPC. With the above observations and directions, the revision petition stands disposed of. November 3 ,2009 (M.M.S.BEDI) TSM JUDGE