Resham Singh Petitioner v. Gurdev Kaur & Ors. S

MEHINDER SINGH SULLAR, J. (Oral)

The conspectus of the facts & material, culminating in the commencement, relevant for deciding the instant revision petition and emanating from the record, is that, initially, petitioner-plaintiff Resham Singh son of Munsha Singh (for brevity “the plaintiff”) has instituted the civil suit for a decree of declaration to the effect that he is owner and in possession of the land in dispute and the impugned sale deeds dated 26.8.2002 and 18.11.2002 executed by him (plaintiff) in favour of Gurdev Kaur respondent-defendant No. 1 and Sukhwinder Singh respondent defendant No. 2 (for short “the defendants”) are null, void and not binding on his rights.

2. During the pendency of the suit, defendant No. 1 moved an application for rejection of plaint for want of proper court fee under Order 7 Rule 11 CPC.

3. Taking into consideration the entire material on record, the trial Court accepted the application and directed the plaintiff to pay ad valorem court fee, failing which, his plaint would be rejected, by way of impugned order dated 21.9.2013 (Annexure P1).

4. Aggrieved thereby, the petitioner-plaintiff has preferred the present revision petition, invoking the provisions of Article 227 of the Constitution of India.

5. After hearing the learned counsel for the petitioner, going through the record with his valuable help and after considering the entire matter deeply, to my mind, there is no merit in the instant revision petition in this respect.

6. Ex facie, the argument of learned counsel that since the plaintiff has filed the civil suit for a decree of declaration and possession, so, he is not required to pay ad valorem court fee on it, is not only devoid of merit but misplaced as well.

7. As is evident from the record that no doubt, plaintiff has filed the civil suit for a decree of declaration & possession, but, at the same time, he has specifically challenged the indicated impugned sale deeds executed by him in favour of defendant Nos. 1 and 2. Unless and until, the impugned sale deeds are set aside, being null & void, he cannot succeed in the main suit. Once he is executant and has challenged the pointed sale deeds, then, he has to pay ad valorem court fee, in view of the law laid down by Hon'ble Apex Court in case Suhrid Singh @ Sardool Singh v. Randhir Singh2010 (2) CCC 510.

8. Moreover, the trial Court has correctly allowed the application of defendant No. 1, by means of impugned order (Annexure P1), which, in substance, is as under (Para 3):-

“From the perusal of the file and after hearing the contentions of both the parties, plaintiff has filed the present suit for declaration to the effect that plaintiff is owner in possession of 565/1430 share in the suit land as detailed in the head note of the plaint. Plaintiff has also challenged the sale deed dated 26.08.2002, sale deed dated 18.11.2002 and registered on 20.11.2002 being illegal, null, void, without consideration, fraud and misrepresentation. On the other hand defendant No. 1 by filing the present application has alleged that as the plaintiff has challenged the above said impugned sale deeds, then he is liable to pay ad valorem Court fee on the value of the suit property. Defendant no. 1 further alleged that the value of the suit property is Rs. 30,18,000/-. He also placed reliance on the case of Punjab & Haryana High Court in re: Om Parkash v. Inderwati reported in 2002 (3) Civil Court Cases 263, in which, it has been held that sale deed challenged being result of fraud, misrepresentation and collusion, court fee payable is ad valorem on sale consideration of sale deed. The case law as relied upon by the learned counsel for the defendant is fully applicable to the facts of the case in hand, as in the present case plaintiff has challenged the impugned sale deeds being illegal, null, void, result of fraud and misrepresentation. It is alleged by the defendants that the plaintiff has not affixed ad-valorem court fee although has challenged the sale deed but in the present case the plaintiff has sought declaration that he is owner in possession of the suit land and the alleged sale deed is not executed by plaintiff rather the same has been executed by defendant No. 1 in favour of defendant No. 3 and the plaintiff is not a party to the said sale deed. It is held by Hon'ble Supreme Court in Suhrid Singh v. Randhir Singh reported in 2010 (2) CCC 510 that:

“If non executant wants to avoid the sale deed and he is in possession, he has to sue for a declaration that the deed is null or void and does not bind him or his share and he has pay merely a fixed court fee and in case 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 ad valorem court fee.”

9. Meaning thereby, the trial Court has examined the matter in the right perspective and has recorded the cogent grounds in this respect. Such order, containing valid reasons, cannot legally be set aside, in exercise of limited revisional jurisdiction of this Court, as envisaged under Article 227 of the Constitution of India, unless & until, the same is perverse and without jurisdiction. Since, no such patent illegality or legal infirmity has been pointed out by the learned counsel for petitioner, so, the impugned order (Annexure P1) deserves to be and is hereby maintained in the obtaining circumstances of the case.

10. No other point, worth consideration, has either been urged or pressed by the learned counsel for the petitioner.

11. In the light of aforesaid reasons, as there is no merit, therefore, the instant revision petition filed by the petitioner-plaintiff is hereby dismissed as such.