Anil Rishi v. Gurbaksh Singh .

1. The challenge in this revision petition is to the order dated 5-4-1997 passed by the learned Sub-Judge 1st Class, Chandigarh, dismissing the application of the defendant praying for rejection of the plaint under the provisions of Order 7, Rule 11 of the Code of Civil Procedure for the reasons stating therein. In order to effectively determine the controversy arising in this revision, it is necessary to refer to the basic facts giving rise to this petition. The plaintiff had filed a suit for declaration to the effect that the registered sale deed dated 26-3-1991 was forged, fabricated and fake document and is not enforceable in respect of the properly in question i.e. house No. 86, Sector 18-A, Chandigarh. This suit was contested by the present petitioner. The submissions raised before the trial Court was that the suit as framed was hit by the provisions of Section 34 of the Specific Relief Act as no relief for declaration could be claimed without praying for a consequential relief therefrom. The main plank of the argument on behalf of the petitioner is that the present suit is not one for declaration simplicitor but in fact and substantively is a suit for cancellation of a registered sale deed, as such, the plaintiff in the suit ought to have paid Court fee on the valuation reflected in the said document and the fixed Court fee of Rs. 20/- was not payable. On this ground it is stated that the plaint of the plaintiff is liable to be rejected and suit be dismissed. The learned trial Court after some discussions rejected the application. The reasoning given by the learned trial Court is that the plaintiff as alleges himself to be an absolute owner of the property in question and the ownership has not been challenged by the defendant and as such the suit was for simplicitor declaration on which the fixed Court fee could be paid.

2. As is evident from the above facts and circumstances, the basic controversy relates to the liability of the plaintiff to pay the appropriate Court fee in accordance with law. The suit is one for declaration which seeks a decree for declaring that a document is forged, fabricated and ineffective. As such the relief in law cannot be granted unless the Court hold that the document is liable to be cancelled. Cancellation of the document in any event would be the basic and main relief which the Court would have to grant even if the version stated by the plaintiff is established as pleaded. It is a settled principle of law that it is not the title or wording of the prayer which would determine the Court fee payable on the relief claimed but it is the substance and manner of the plaint read together that would finally determine such an issue. The sale deed dated 26-3-1991 is a registered document. According to the defendant the title of the property is already passed to him by virtue of the registered sale deed and it is only the cancellation thereof which could divest them in law of the right accruing therefrom. The reasoning given by the learned trial Court does not appear to be well founded in view of the settled judicial principles regulating the controversy in issue. At this stage, it may be appropriate to make a reference to the judgment of the Hon'ble Supreme Court in the case of Shamsher Singh v. Rajinder Prashad, AIR 1973 SC 2384, the relevant portions of which read as under (at page 2386):--

"The Court in deciding the question of Court-fee should look into the allegations in the plaint to see what is the substantive relief that is asked for. Mere astuteness in drafting the plaint will hot be allowed to stand in the way of the Court looking at the substance of the relief asked for.

xx xx xx (at page 2387).

Consequently when the plaintiffs sued for a declaration that the decree obtained by the appellant against their father was not binding on them they were really asking either for setting aside the decree or for the consequential relief of injunction restraining the decree holder from executing the decree against the mortgaged property as he was entitled to do."

A Full; Bench of this Court in the case of Niranjan Kaur v. Nirbigan Kaur, 1982 (84) PLR 127 : (AIR 1981 P & H 368) while dealing with somewhat similar situation held as under (at page 371, of AIR):--

"xx xx that 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 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.

xx xx xx xx xx in case the main relief in the suit is held to be that of cancellation of the sale deed, then the case is not covered by Section 7(iv)(c) and the only provision applicable is Article 1, Schedule I of the Act. In order to bring the case under Section 7(iv)(c) of the Act the main and substantive , relief should be that of a declaration and the consequential relief should be ancillary thereto. Moreover, if no consequential relief is claimed or could be claimed in the suit, then Section 7(iv)(c) will not be attracted. To say in the plaint, that it be declared that the sale deed, got executed from her as a result of the fraud was void and not binding on her, does not convert the suit into one for a declaration with the consequential relief of possession so as to fall within the provision of Section 7(iv)(c) of the Act. To such a suit, the only Article applicable is article 1, Schedule I. 1970 Cur LJ 80, 1974 Cur LJ 71 approved. (1975) 77 PLR 372 : (AIR 1975 Punj 316); (1978) 80 PLR 29, (1978) 80 PLR 622 overruled."

3. In the case of Lakhpat v. Smt. Chander Kanta, 1989 (1) PLR 103 a Bench of this Court took a view that where the Court holds that on the heading of the plaint it is clear that substantive relief claimed is that of cancellation of the sale deed and the mere fact that the suit is for declaration would not help the plaintiff to avoid liability of appropriate Court fee under the provisions of that Act.

4. The learned counsel for the respondent herein distinguishes the judgment of the learned Single Judge in the case of Lakhpat, supra, on the plea that the plaintiff in the present suit was not a party to the alleged sale deed. Obviously the sale deed was executed. This factor by itself cannot alter the position of law. It may be a relevant factor to be taken into consideration by the learned trial Court while deciding the merits of the case. So far the question of payment of appropriate Court fee is concerned, the case of the plaintiff must be judged cumulatively on the basis of the facts stated in the plaint rather than the relief the plaintiff is claiming by cleverly wording the prayer clause. The legislative intention is clear to vest a wide discretion with the Court to examine the matter in a greater depth to find out the real relief which the plaintiff would ultimately get on the bundle of facts stated in the plaint. The provisions of Section 31 of the Specific Relief Act clearly provides that where a document and a written instrument is void or voidable the party has a right to sue to have the same adjudged as void or voidable and if the Court so adjudges then it has the discretion to order the document to be cancelled. In other words, the prayer of the plaintiff that the document was void as a result of fraud and misrepresentation, the necessary consequence thereof would be that such document needs to be cancelled. If the sale deed which is a registered document exists and is not directed to be cancelled and delivered the basic purpose of the plaintiff in instituting the present suit remains unsatisfied and the Court may not be in a position to grant complete and effective relief to the plaintiff. The registered sale deed reflects the consideration of Rs. 9 lacs and the plaintiff in unambiguous terms has claimed that the said document is void and ineffective for the reasons stated in the plaint. A plaintiff cannot be permitted to avoid payment of requisite and prescribed Court fee in the garb of innocently worded prayer clause while in fact it would in spirit and substance and in law becomes inevitable for the Court to grant such a relief which has not been prayed for in the prayer clause explicitly. In other words, the prayer clause essentially incorporates another relief.

5. Having come to this conclusion that the plaintiff respondent herein is liable to pay the ad valorem Court fee, the necessary corollary thereof is whether the plaintiff would be entitled to pay the requisite Court fee or the plaint is liable to be rejected. It is a settled principle of law that wherever or whenever the Court comes to a conclusion that plaintiff is liable to pay Court fee larger than the Court fee affixed by the plaintiff, it must grant time to the plaintiff to make up deficiency in Court fee, rather than rejecting the plaint right at the threshold for payment of inadequate Court fee.

6. Consequently, this petition is allowed. The impugned order dated 5-4-1997 is set aside. The plaintiff shall pay ad valorem Court fee as aforestated within a period of one month from today. Upon payment of Court fee the trial Court shall proceed with the suit in accordance with law.