Vinod K. Sharma, J.:— The respondent-plaintiff filed a suit for declaration wherein the following relief was claimed:—
“It is, therefore, respectfully prayed that a decree for declaration to the effect the General Power of Attorney No. 6147/4 dated 14.9.2005 allegedly executed by the plaintiff in favour of defendant No. 1 and registered by Joint. Sub-Registrar, Ludhiana (Punjab) and the sale-deed bearing No. 6122/1 dated 27.9.2005 executed by defendant No. 1 allegedly being General Power of Attorney of the plaintiff in favour of defendant No. 4, allegedly for a consideration of Rs. 34,50,000/- in respect of the land measuring 83 kanals 3 marlas as fully detailed in para No. 1 of the plaint, situated at village Adhon, tehsil Thanesar, district Kurukshetra, vide jamabandi for the year 2003-2004 are null and void, illegal, inoperative, ineffective, non est, void ah initio, obtained by fraud and forgery and same are not binding on the rights of the plaintiff, with a consequential relief of permanent injunction restraining the defendants permanently from interfering into the peaceful possession of the plaintiff over the suit land as fully detailed in para No. 1 of the plaint in and also further restraining the defendants from alienating the suit land in any manner, in favour of anybody on the basis of alleged General Power of Attorney dated 14.9.2005 and the sale-deed dated 27.9.2005 may kindly be passed in favour of the plaintiff and against the defendants with costs of the present suit.
Any other relief to which the plaintiff is found entitled or becomes entitled to the facts and circumstances of the present suit, may also be awarded to the plaintiff.”
2. On notice having been served, the petitioner herein moved an application for directing the plaintiff to pay ad valorem court-fee on the ground that the plaintiff had sought cancellation of sale-deed dated 27.9.2005 relating the suit land valuing at Rs. 34,50,000/-. It was alleged that the plaintiff had undervalued the suit for the purposes of court-fee and jurisdiction so as to save himself from paying the requisite court-fee.
3. The learned trial Court came to the conclusion that as the plaintiff-respondent has not sought the possession as consequential relief, therefore, ad valorem court-lee was not payable and, accordingly, dismissed the said application.
4. Mr. R.S Mamli, learned counsel, appearing for the petitioner contended that the plaintiff-respondent has filed a suit for cancellation of sale-deed alleged to have been executed on the basis of fraud and forgery and, therefore, the question of payment of court-fee would be covered under Article 1 Schedule-I of Court Fees Act (for short the ‘Act’) and ad valorem court-fee would be payable. In support of this contention, he placed reliance on a Full Bench Judgment of this Court in the case of Niranjan Kaur v. Nirbigan Kaur, 1981 PLJ 423, wherein the Hon'ble Full Bench of this Court has been pleased to lay down that the suit for cancellation of document or declaring the document voidable by a party to the document relating to agricultural land is covered under Article 1 Schedule I and not under Section 7(iv)(c) of the Act.
5. The contention of the learned counsel for the petitioner was that the suit filed by the plaintiff-respondent was virtually for cancellation of the sale-deed executed by the plaintiff through his Attorney and, therefore, the same could not be converted into one for declaration and consequential relief so as to bring it under the provisions of Section 7(iv)(c) of the Act. Learned counsel for the petitioner placed reliance on the judgment of this Court in the case of Himanshu… v. Smt. Kailash Rani…, 2004 (4) RCR (Civil) 582 (P&H) : 2005 (1) CCC 337, wherein it was held as under:—
“In view of the above discussion, in my opinion, it would clear that the plaintiff was required to pay ad valorem court-fees in the present suit on the sale consideration mentioned in the sale-deed, as by filing the present suit for declaration, the plaintiff was seeking the cancellation of the aforesaid sale-deed executed by his grand-father in favour of defendant No. 1. Once it is found that the plaintiff was required to pay the ad valorem court-fees by being the present suit, it would be clear that the learned trial Court was perfectly justified in passing the impugned order dated 30.10.2003 directing the plaintiff to pay ad valorem court-fees.”
6. Learned counsel for the petitioner also placed reliance on the judgments of this Court in the cases of Ranjit Singh… v. Balkar Singh…, 2001 (1) RCR (Civil) 573 (P&H) : 2001 (2) CCC 45; Anil Rishi v. Gurbaksh Singh, 1998 (3) RCR (Civil) 135 (P&H) : 1998 (3) CCC 78; Bagrawat v. Mehar Chand, 2001 (4) RCR (Civil) 94 (P&H) : 2002 (1) CCC 12 and Om Parkash v. Inderawati, 2002 (4) RCR (Civil) 186 (P&H) : 2002 (3) CCC 263. In all these authorities, this Court was pleased to hold that where the relief claimed was for cancellation of sale-deed, then the ad valorem court-fee is payable on the sale consideration.
7. On the other hand, Mr. Arvind Singh, learned counsel appearing on behalf of the plaintiff-respondent, supported the order passed by the learned trial Court by placing reliance on the judgment of this Court in the case of Bhagwan Kaur v. Amrik Singh, 2006 (4) RCR (Civil) 531, wherein it has been held as under:—
“However, I am unable to agree with the argument raised by learned counsel for the petitioners. The argument raised by the learned counsel for the petitioner is misconceived in law. The judgment of Full Bench of this court in Niranjan Kaur's case (supra) is not being read correctly by the learned counsel for the petitioners. The Full Bench was seized of a case where the plaintiff, who was a party to a document, filed a suit for cancellation of a registered document and also sought possession as a consequential relief thereof. It was found that in order to bring the case under Section 7(iv)(c) of the Court Fees Act, 1870 (hereinafter to be referred as “the Act”), the main and substantive relief should be that of declaration and the consequential relief should be ancillary thereto. If no consequential relief is claimed or could be claimed in the suit, then Section 7(iv)(c) of the Act will not be attracted in a suit to obtain declaratory decree where no consequential relief is prayed, sub-clause (iii) of Article 17 of Schedule II of the Act shall be applicable. The Full Bench found that the suit was virtually for the cancellation of the sale-deeds and the plaintiff cannot obtain possession unless such decree is cancelled by a decree of the Court. Thus, it was a suit for declaration for cancellation of the sale-deed and possession as a consequential relief thereof. Thus, where consequential relief of possession cannot be granted without cancellation of the document, those cases alone will attract ad valorem court-fees. Still further, the said principle would not be applicable in respective of the suit for declaration by a son or a member of the coparcenary under Hindu Law. The Full Bench itself found that such suits would be on a different footing. In such suits, the main relief would be that of declaration and consequential relief of injunction restraining the decree-holder from executing the decree against the son will be just ancillary. The following observations would be relevant to appreciate the controversy raised herein:—
“8. It is common case of the parties that 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 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. Section 7(iv)(c) clearly contemplates suits to obtain the declaratory decree or order where consequential relief is prayed. It further provides that in all such suits, the plaintiff shall state the amount at which he values the relief sought. A further proviso has been added thereto by the Punjab Act No. 31 of 1953, which reads as follows:—
Provided further that in suits coming under sub-clause (c) in cases where the relief sought 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 this section.”
9. In a suit to obtain declaratory decree where no consequential relief is prayed, sub-clause (in) of Article 17 of Schedule II of the Act will be applicable, but the suit filed by the plaintiff-petitioner was virtually, to all intents and purposes, for the cancellation of the sale-deed, executed by her in favour of the defendant-respondent. She cannot claim possession unless the said deed is cancelled by a decree of the Court.”
“6……A suit for declaration by a son or a member of a coparcenary under the Hindu Law will thus be on a different footing. In such a suit, the main relief will be that of a declaration and the consequential relief of injunction restraining the decree-holder from executing the decree against the sons etc. will, be just ancillary….”
8. The learned counsel for the respondent also placed reliance on the judgment of this Court in the case of Krishna Devi v. Jaswant Singh, 2006 (4) RCR (Civil) 563, wherein this Court has been pleased to hold as under:—
“5. Learned counsel for the respondent has relied upon the Full Bench Judgment of this Court, to contend that the plaintiffs are a party to the sale-deed, and therefore, the plaintiffs are required to affix ad valorem court-fee. It is also contended that the defendant is in possession of the suit land and, therefore, the suit for declaration simplicitor is not maintainable.
6. It is well settled that for the purposes of determining the question of court-fee, the averments made in the plaint alone are required to be considered. In view of the averments made in the plaint, it is apparent that the plaintiffs have not asked for consequential relief of possession, therefore, the principle laid down by the Full Bench of this Court in the aforesaid authority, cannot be extended to the facts of the present case.” The reading of the order reproduced above would show that the authorities relied upon by the plaintiff-respondent have no application to the facts of the present case. The reading of the prayer made in the plaint clearly indicates that the plaintiff-respondent had sought cancellation of the sale-deed executed by his attorney as also power of attorney which was executed by the plaintiff-respondent and therefore, in view of the authorities relied upon by the petitioner herein, the plaintiff-respondent was liable to pay ad valorem court-fee on the sale consideration.
Accordingly, the revision petition is allowed, the impugned order is set aside and the plaintiff-respondent is required to pay the ad valorem court-fee. However, the plaintiff-respondent is granted one month's time to pay the requisite court-fee on the plaint.
Petition allowed.