Allowed

Amrit Kaur and Anr. v. Surender Kaur and Ors.

Punjab & Haryana HC11 Nov 2008CR/3177/2008

Case brief

AI extract

What is this about?

This revision petition challenged a trial court order directing coparcener plaintiffs to pay ad valorem court fee. The High Court distinguished cited precedents where sale deeds were challenged via assertion of existing rights versus fraud, and directed the trial court to redetermine fees based on Haryana's Act No.22 of 1974.

What did the court decide?

The impugned order was set aside, and the case was remanded to the trial court to redetermine the court fee payable.

Amrit Kaur and Anr. Vs Surender Kaur and Ors. — Property and Title | Punjab & Haryana HC (2008)

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Civil Revision No. 3177 of 2008 (O&M)

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IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH

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Civil Revision No. 3177 of 2008 (O&M) Date of Decision : 11.11.2008

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Amrit Kaur (minor ) & Anr.

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.......... Petitioners

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Versus

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Surender Kaur & others.

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...... Respondents

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CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA

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Present : Mr. Parminder Singh, Advocate for the petitioners.

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Mr. Maharaj Kumar, Advocate for respondents No. 1 to 3.

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VINOD K. SHARMA, J. (ORAL)

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This revision petition is directed against the order dated 10.5.2008 passed by the learned Civil Judge (Jr. Divn.), Karnal whereby an application moved by the defendant-respondents for direction to the petitioners to pay ad-valorem Court fee, has been allowed.

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The petitioner-plaintiffs filed a suit seeking a decree for possession and declaration to the effect that the sale deed No. 882/1 dated 18.9.2007 with respect to the land measuring 12K-0M i.e. 240/2000 share out of the total land measuring 100K-0M comprised in khewat No. 308, Kitas 13 situated in village Peont, Sub Tehsil Nissing, Tehsil and District

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Civil Revision No. 3177 of 2008 (O&M)

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Karnal, is illegal, null and void and not binding upon the rights of the plaintiffs-petitioner with a consequential relief of permanent injunction restraining the defendants from raising construction over the land in question and further restraining the defendants-respondent from alienating the land in question in favour of any other person by way of sale, mortgage deed etc.

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On notice, the defendant-respondents moved an application under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the plaint on the plea that the plaintiff-petitioners had only affixed a Court fee of Rs. 25/- whereas the sale consideration of the sale deed is Rs. 12 lacs. It was claimed that plaintiffs were required to file ad valorem Court fee.

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The learned trial Court accepted the application and directed the petitioner-plaintiffs to affix the requisite ad valorem Court fee within a period of one month from the date of passing of the order.

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Mr. Parminder Singh, learned counsel appearing on behalf of the petitioners vehemently contended that the petitioner-plaintiffs were not party to the sale deed and the property in question was a coparcenary joint Hindu family property in the hands of Karta of the Joint Hindu family which has been alienated without any kind of legal necessity.

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It was claimed that the petitioners were claiming their right and interest as coparcener to challenge the decree and, therefore, the ad valorem Court fee was not required to be paid. In support of this contention the learned counsel for the petitioners placed reliance on the judgment of this Court in the case of Ravinder Kumar Vs. Narinder Kumar & Ors. 2007(2)

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Civil Revision No. 3177 of 2008 (O&M)

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RCR (Civil) 1 wherein this Court has been pleased to lay down as under :-

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“ 5. The learned trial Court came to the conclusion that in the suit framed the petitioner has primarily claimed the relief of cancellation of registered sale deeds in the suit for declaration and, therefore, the case was not covered under Section 7(iv)(b)(c) and, therefore, he was required to pay the Court fee on the sale consideration as well as on the will dated 29.7.1990 as per the prevalent rate of suit property. This finding of the learned Trial Court cannot be sustained. The Court fee has to be assessed keeping in view the suit as framed. The reading of the plaint and the relief claimed would show that the plaintiff-petitioner has filed a suit for declaration with a consequential relief of cancellation of decrees passed by the Court in which he is not a party. Once the petitioner plaintiff was not party to the sale deeds and was claiming ownership and consequential relief on the basis of declaration prayed for, therefore advoleram Court fee was not payable as he cannot be held to be bound by the act of third party. Thus, the impugned order cannot be sustained.”

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The learned counsel for the petitioner has also placed reliance on the judgment of this Court in the case of Smt. Beena and others Vs. Rajinder Kumar and others 2006(2) Punjab Law Reporter 6 .

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Mr. Maharaj Kumar, learned counsel appearing on behalf of respondents No.1 to 3, however, supported the impugned order by placing reliance on the judgment of this Court in the case of Om Parkash Vs. Inderawati and others 2002(2) Punjab Law Reporter 853 , wherein this

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Civil Revision No. 3177 of 2008 (O&M)

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Court was pleased to lay down as under :-

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“6. If the principles laid down by the Full Bench are applied to the facts of the case in hand, no doubt is left that the suit is not only for declaration but also for consequential relief. The prayer made in the suit is that the sale deeds dated 28.4.2000 and 27.4.2000 may be set aside as the same have been the result of fraud, misrepresentation and collusion. The consequential relief of permanent injunction has also been prayed restraining defendant-respondents No.2 and 3 from alienating, selling or transferring the suit land or any art thereof to anyone on the basis of the aforesaid wrong, illegal and void sale deeds and many other consequential reliefs. Therefore, the reliance placed by the learned counsel for the plaintiff-petitioner on the Full Bench does not in any manner advance his case. On the contrary, the Full Bench laid down the principle that the Court should find out the substantive relief claimed without going into the form. Therefore, the revision petition is liable to be dismissed.”

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The learned counsel for the respondent also placed reliance on the judgment of this Court in the case of Jagdish Vs. Jagat Pal 2003(2) Civil Court Cases 635 (P&H) , wherein this Court was pleased to lay down as under :-

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“ 8. On the other hand, learned counsel for the respondents contended that since it is suit by grandsons for declaration challenging the alienation made by their

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Civil Revision No. 3177 of 2008 (O&M)

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grandfather being without legal necessity and without consideration and consequently, the relief of permanent injunction has been claimed, then the question of paying ad valorem Court fee on the sale price does not arise. For this contention, he has placed reliance upon an authority of this Court, Gurjeewan Singh v. Jagtar Singh and others, 1990 PLJ 234. In my opinion, since it is alleged that the sale deed was executed by the grandfather with respect of the Joint Hindu Family property for which the respondents (plaintiffs) had also a share, so they would be deemed to be a party to the sale deed and the only way to avoid the document would be to seek its cancellation and mere declaration cannot have an effect on the document. The land in dispute vested in the petitioner by virtue of sale deed dated 26.12.1983 and it would remain vested in him till the sale deed is cancelled. In such circumstances, in view of the law laid down in Bagrawat's case (supra), I hold that Article I of the Court-Fees Act is applicable and the respondents are required to pay ad valorem Court-fee on the sale consideration mentioned in the sale deed. As far as question of limitation is concerned, it is mixed question of law and fact and is to be decided on the basis of evidence to be led by the parties as to when the

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Civil Revision No. 3177 of 2008 (O&M)

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plaintiffs acquired knowledge of the execution of the sale deed. So, it cannot be decided at this stage. Consequently, the revision petition is accepted and the respondents (plaintiffs) are directed to pay ad valorem Court-fee on the sale consideration mentioned in the sale deed.”

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The reliance was also placed on the judgment of this Court in

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the case of Ajmer Singh Vs. Punjab Singh (Minor) and another 2007(3) Punjab Law Reporter 228 , wherein this Court has been pleased to lay down as under :-

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“ 2. It is not in dispute that while seeking the relief of injunction, the petitioner has also challenged sale-deed to be outcome of fraud, therefore, not binding on him. Consequently, the learned trial Court was right in coming to the conclusion that the petitioner was liable to pay the ad valorem court-fee as the sale-deed was challenged. There is no illegality in this order which may call for interference by this Court.”

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On consideration of the matter, I find force in the contention raised by the learned counsel for the petitioner. In the present case, the plaintiff was claiming his right in the property being coparcenary and was not a party to the sale deed.

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The right claimed by the petitioner was with regard to the right vesting in him as a coparcener and, therefore, the challenge to the sale deed was to assert his existing right and interest in the property and, thus, the

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Civil Revision No. 3177 of 2008 (O&M)

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law laid down by this Court in the case of Ravinder Kumar Vs. Narinder Kumar & Ors. (supra ) would be applicable to the facts of the present case. The authorities relied upon by the learned counsel for the respondent would not be applicable to the facts of the present case as in the case of Ajmer Singh Vs. Punjab Singh (Minor) and another (supra) the challenge was to the sale deeds on the ground of fraud. The payment of Court fee was sought to be avoided by intelligently wording the plaint to be for relief of mandatory injunction.

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Similarly, the case of Jagdish Vs. Jagat Pal (supra) is also not applicable to the facts of present case as the amendment made vide State of Haryana vide Act No.22 of 1974 has not been taken into consideration.

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Similarly, in the case of Om Parkash Vs. Inderawati and others (supra) the challenge was on the ground of fraud and misrepresentation.

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There is another angle to the present case. In view of the law laid down by this Court in the case of Smt. Beena and others Vs. Rajinider Kumar and others (supra) as the sale deed challenged is regarding agricultural land, which is subject to land revenue, the ad valorem court fee payable would, therefore, be not on the value of the property but on the value which is ten times of the land revenue in terms of Section 7(iv)(c) as quantified under Section 7(V) of the Act.

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This aspect of the matter has not been taken into consideration by the learned trial Court. The trial Court is required to take into

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Civil Revision No. 3177 of 2008 (O&M)

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consideration the amendment made in the State of Haryana vide Act No.22 of 1974 and redetermine the amount of Court fee payable in terms thereof.

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For the reasons stated above, this revision is allowed. The impugned order is set aside and the case is remanded back to the learned trial Court to redetermine the Court fee payable by taking into consideration the amendment in the State of Haryana vide Act No.22 of 1974.

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11.11.2008 ( VINOD K. SHARMA ) 'sp' JUDGE

Amrit Kaur and Anr. v. Surender Kaur and Ors.

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Amrit Kaur and Anr. v. Surender Kaur and Ors.

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