Court No. - 25
Case :- FIRST APPEAL FROM ORDER No. - 388 of 2001 Appellant :- Aditya Narain Lal Respondent :- Bhagwan Das & Others Counsel for Appellant :- Krishna Ji Khare,R.D. Singh,Shiv Kumar Verma Counsel for Respondent :- S.K. Verma,Advocate General,R.B.Singh,S.C.,V.M.Srivastava
Hon'ble Salil Kumar Rai,J.
The present appeal has been filed by the plaintiff under Section 6-A of the Court Fees Act,1870 (hereinafter referred to as 'Act, 1870') read with Section 104 of the Code of Civil Procedure 1908 against the order dated 7.3.2001 passed by Judge, Small Causes Courts, District Varanasi (hereinafter referred to as 'trial court') whereby the trial court has held that the plaint instituting Original Suit No.753 of 1998 was insufficiently stamped and therefore, directed the plaintiff to provide proper court fees according to the observations made in the impugned order dated 7.3.2001.
The facts of the case are that the plaintiff/appellant instituted Original Suit No.753 of 1998 claiming his half share in the suit property which was described as House No.C-21/112 and Nazul Plots No.270, 277 and 278. It was stated in the plaint that the defendant nos. 1 & 2 had executed a deed dated 21.1.1998 in favour of defendant no.3 regarding the suit property even though plaintiff had half share in the same. The deed was registered on 27.2.1998. In the plaint, the plaintiff alleged that he was in possession over his share in the suit property. The plaintiff prayed for a decree declaring that the deed dated 21.1.1998 was void regarding his half share in the suit property and for consequential prohibitory injunction. Court fees was paid by the plaintiff under Section 7(iv)(c) of the Act, 1870. The defendants filed their objections stating that the plaint was insufficiently stamped as the document dated 21.1.1998 was a registered document and therefore, the relief in the plaint was essentially a relief for cancellation of a document and thus the plaintiff was liable to pay ad valorem court fees on the plaint. The trial court vide its impugned order dated 7.3.2001 held that as the deed dated 21.1.1998 was registered, therefore, the relief prayed by the plaintiff was essentially a prayer for cancellation of document and thus ad valorem court fees had to be paid on the plaint. Consequently, the trial court held, that the plaint was insufficiently stamped and directed the plaintiff to pay deficiency in the court fees in accordance with the orders of the trial court.
It is relevant to note that the plaintiff was not the executant of the deed dated 21.1.1998. Further, it has been alleged in the plaint that the plaintiff was in possession over his half share in the suit property and in the plaint no relief for possession has been sought by the plaintiff.
The question regarding payment of court fees where plaintiff prays that a registered document be declared void and for consequential injunction which does not include a relief for possession and where the plaintiff is not the executant of the document is no more res integra and is covered by the judgment of the Supreme Court in Suhrid Singh versus Randhir Singh and others (2010) 12 Supreme Court Cases 112. The relevant observations by the Supreme Court in paragraph nos. 7 & 8 of the aforesaid judgement are reproduced below:
"7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to A and B, two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale. A has to sue for cancellation of the deed. On the other hand, if B, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by A is invalid/void and non- est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If A, the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If B, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if B, a 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 an ad-valorem court fee as provided under Section 7(iv)(c) of the Act.
8. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief 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 Section 7."
The facts of the present case are covered by the judgment of the Supreme Court in Suhrid Singh (Supra). In view of the aforesaid judgement of the Supreme Court, the impugned order dated 7.3.2001 passed by the Trial Court is contrary to law and is liable to be set aside. It is held that the plaint instituting Original Suit No.753 of 1998 was sufficiently stamped in case the court fees was paid under Section 7(iv)(c) of the Act, 1870.
The appeal is allowed and the order dated 7.3.3001 is hereby set aside.
The suit was instituted in the year 1998. The trial court is directed to expeditiously dispose of the aforesaid suit within two years from the date a certified copy of this order is produced before it.
Order Date :- 21.12.2018 IB