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ISHWAR versus SMT. OM PATI & ORS

High Court of Punjab and Haryana, Chandigarh

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Ishwar v. Smt. Om Pati & Ors - CR-271-2004 [2006] RD-P&H 445 (31 January 2006)

Civil Revision No. 271 of 2004 [1]

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Civil Revision No. 271 of 2004

Date of Decision: February 20, 2006

Ishwar .........Petitioner

versus

Smt. Om Pati and others ..........Respondent Present:- Shri S.N. Pillania, Advocate for the petitioner.

Shri Amit Jain, Advocate for respondents No.1 and 2.

HEMANT GUPTA, J.

The challenge in the present revision petition is to the order passed by the learned trial Court on 7.11.2003 whereby the plaintiff was directed to pay ad valorem court fees on the sale consideration mentioned in the sale deeds.

The plaintiff has filed a suit for declaration to the effect that sale deeds dated 16.6.2003 executed by defendant No.3 in favour of defendant No.1 and 2 regarding alienation of specific Khasra number are null and void and not binding upon the rights of the plaintiff and that the defendants be restrained from taking possession over any specific portion of the joint land. In the said suit, the defendants moved an application that since the challenge is to the sale deeds, the plaintiff is required to affix ad valorem court fees.

Learned counsel for the petitioner has vehemently argued that Civil Revision No. 271 of 2004 [2]

the petitioner is not a party to the sale deeds executed by defendant No.3 but the challenge to the sale deeds is only limited to the extent that defendant No.3 could not sell specific Khasra number since he is a co-sharer along with the plaintiff. The plaintiff is in possession of the suit land as a co- sharer and, therefore, the defendants be restrained from dispossessing the plaintiff.

It is contended that the learned trial Court has committed grave illegality in holding that ad valorem court fees is liable to be paid in terms of Article 1 of Schedule I of the Court Fees Act, 1870 (hereinafter to be referred as "the Act"). As a matter of fact, the plaintiff has filed a simpliciter suit for declaration without any consequential relief and, therefore, court fees payable would be in terms of Schedule II Article 17 (iii) of the Act. The plaintiff is neither a party to the sale deeds nor the plaintiff is claiming any consequential relief and, therefore, the impugned order passed by the learned trial Court is clearly not sustainable in law.

I had the occasion to consider the entire case law in respect of payment of ad valorem court fees in Civil Revision No. 5215 of 2003 titled Smt. Beena and others vs. Rajinder Kumar and others, decided on 24.01.2006, wherein it has been held that where the plaintiff is asking for a consequential relief, the court fees would be payable in terms of section 7 (iv)(c) of the Act as quantified under section 7 (v) of the Act but where a declaration is sought without any consequential relief, the court fees payable would be under Schedule II Article 17 (iii) of the Act.

Keeping in view the fact that though the challenge is to the sale deeds but the plaintiff is not a party to the said sale deeds nor the plaintiff is claiming any consequential relief and it is a simpliciter suit for declaration Civil Revision No. 271 of 2004 [3]

challenging the alienation of specific khasra number, the plaintiff is not required to pay ad valorem court fees but the court fees payable would be in terms of Schedule II Article 17 (iii) of the Act. Therefore, the impugned order passed by the learned trial Court is clearly not sustainable in law.

Consequently, the revision petition is allowed and the impugned order is set aside

February 20, 2006 ( HEMANT GUPTA )

ks JUDGE


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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