IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 5235 of 2010 (O&M) Date of Decision: November 08, 2010 Chand Kaur …Petitioner Versus Jagsir Singh and another. …Respondents CORAM: HON’BLE MR. JUSTICE ALOK SINGH 1. Whether reporters of local news papers may be allowed to see judgment? 2. To be referred to reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr. S.S.Rangi, Advocate, for the petitioner. Alok Singh, J. Present petition is filed challenging the order dated 13.05.2010 passed by learned Civil Judge (Junior Division), Nabha, thereby directing the plaintiff-petitioner to pay ad valorem court fee. The brief facts of the present case are that plaintiff has filed suit for declaration declaring the transfer deed dated 28.12.2009 as illegal, null and void on the ground that transfer deed is outcome of fraud and misrepresentation. C.R. No.5235 of 2010 This Court in the matter of Surinder Pal vs. M/s Rainbow Promoters Pvt. Ltd., C.R. No. 3091 of 2007, decided on 01.10.2010 has observed as under:- “In the humble opinion of this Court, of course question of payment of Court fee ordinarily shall be decided looking into the contents of the plaint and relief sought, however, a litigant cannot be permitted to mould the relief to save Court fee. Real intention of the plaintiff and real relief hidden in the relief sought is to be found out from the contents of the plaint to decide the question of Court fee. In the opinion of this Court, if executant of a deed wants it to be annulled, he has to seek cancellation of the deed. However, if the deed is void ab initio, then suit simpliciter for declaration to remove the cloud of title would be maintainable. Full Bench of this Court in the matter of Niranjan Kaur Vs. Nirbigan Kaur, reported in 1982 (84) PLR 127 has held as under:- “It is well settled that the Court in deciding the question of Court fee should look into the allegation made in the plaint to find out what is the substantive relief that is asked for. Mere astuteness in drafting the plaint will not 2 C.R. No.5235 of 2010 be allowed to stand in the way of the Court looking at the substance of the relief asked for. Thus in each case, the Court has to find out the real relief claimed by the plaintiff in the suit. Where the main relief is that of the cancellation of the deed, and the declaration if any, is only a surplusage, the case would not be covered under Section 7(iv)(c) of the Act. Because in a suit under that clause, the main relief is that of a declaration and the consequential relief is just ancillary.” Hon’ble Apex Court in the matter of Suhrid Singh @ Sardool Singh Vs. Randhir Singh and others, reported in 2010(2) RCR (Civil) 564 has observed as under:- “6. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to ‘A’ and ‘B’ -- two brothers. ‘A’ executes a sale deed in favour of ‘C’. Subsequently ‘A’ wants to avoid the sale. ‘A’ has to 3 C.R. No.5235 of 2010 sue for cancellation of the deed. On the other hand, if ‘B’, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by ‘A’ is invalid/void and nonest/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If ‘A’, the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If ‘B’, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if ‘B’, a non- executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under Section 7(iv)(c) of the Act. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso 4 C.R. No.5235 of 2010 thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7. In the opinion of this Court, if any alienation is outcome of fraud, misrepresentation or coercion, then alienation shall be voidable and in that event, plaintiff has to seek annulment / cancellation of the deed. However, if deed is ipso facto void, abinitio, then suit simplicitor for declaration shall be maintainable. In the present case, plaintiff is the executant of the sale deed and she has challenged the alienation on the ground of fraud and misrepresentation, hence, the alienation would be voidable for which simplicitor suit for declaration is not competent and main hidden relief is suit for annulment / cancellation for which plaintiff has to pay ad valorem court fee. Learned Trial Court has not committed any illegality or jurisdictional error while directing the plaintiff to pay ad valorem court fee. Dismissed. However, plaintiff is granted two months’ time to pay ad valorem court fee before the Court below. November 08, 2010 ( Alok Singh ) vkd Judge 5