1) Heard learned counsel for the petitioners and to Sri Dinesh Kumar Srivastava, learned counsel for respondent No.3.
2) On the instruction issued by this Court, Sri Shatrughan Chaudhary, learned Additional Chief Standing Counsel addressed to this Court on the point involved.
3) By means of the present writ petition, the petitioners are challenging the orders dated 08.01.2019, passed by respondent No.1 and the order dated 27.02.2018, passed by respondent No.2, whereby the Court fee deposited in filing the suit for cancellation of sale deed and permanent injunction with consequential relief has been declared to be insufficient.
4) Factual matrix of the case is that plot No.310 was originally recorded in the name of Sri Ram Kumar and plot No.311 was recorded as Banjar land situated in Village Palai Kalyanpur, Pargana and Tehsil Akbarpur, District Ambedkarnagar.
5) Sri Raj Kumar belongs to Scheduled Caste Category and was recorded as owner of plot No.310. A sale deed was executed on 02.01.1992 in favour of Sri Ram Bali and Ram Himanchal, who belongs to the same community. Sri Ram Bali and Ram Himanchal executed a sale deed on 09.01.1992 in favour of Sri Laljeet, Amarjeet and Chhotelal.
6) Sri Ram Bali and Ram Himanchal belongs to Scheduled Caste community and the purchasers - Sri Laljeet and Amarjeet belongs to Scheduled Caste community, but Sri Chhotelal Verma fraudulently declared himself to be Scheduled Caste Category but he belongs to Other Backward Category, therefore, the sale deed executed in favour of Sri Chhotelal Verma was void. Sri Chhotelal Verma also executed a sale deed on 15.02.2014 in favour of Sri Hardeep Singh.
7) The petitioners and original tenure holder Sri Ram Kumar entered into a compromise through notary affidavit stating that Sri Ram Kumar belongs to Scheduled Caste Community, therefore, he could not execute the sale deed in his favour but permitted the petitioners to construct their building on his plot and in pursuance thereof, the construction was made to open shop for running their business.
8) The petitioners filed a suit for cancellation of the sale deed and for permanent injunction against the respondent No.3-defendant. The petitioners paid Court fee on the basis of revenue rent paid by the owner of the land and value of the building by calculating the value of Rs.5 Lacs and revenue rent after multiplying thirty times was Rs.60/- and the Court fee paid was Rs.502/-.
9) A Commission report was submitted on 24.04.2014 along with site plan. Issues were framed and in regard to Court fee, issue Nos.3 and 4 were framed. The Court below vide order dated 27.02.2018 decided the issue Nos.3 and 4 and Court fee was fixed on the value of the sale deed, which was Rs.8,26,000/-.
10) Against the order passed by the lower Court dated 27.02.2018, revision was filed under Section 115 CPC before the District Judge, Ambedkarnagar, who rejected the revision and affirmed the order passed on issue Nos.3 and 4 by holding that the Court fees fixed by the trial Court is just and valid.
11) The orders dated 27.02.2018 and 08.01.2019 have been assailed by means of the present writ petition.
12) Assailing the aforesaid two orders, submission of learned counsel for the petitioners is that the orders passed by the Courts below are illegal, arbitrary and without application of mind.
13) He next submitted that no relief has been claimed against the private respondent No.3 (4) in the suit, therefore, the decree passed if any will not have any legal binding upon him.
14) He further submitted that the boundaries of plot No.1097 and 1096 are different and name of the petitioners have been entered in the Parivar Register.
15) He next submitted that the Court fee paid is sufficient, therefore, both the Courts below have committed manifest error of law in deciding the issue Nos.3 and 4 against the petitioners. In support of his submission, he placed reliance upon a judgment in the case of Suhrid Singh Alias Sardool Singh Vs. Randhir Singh and others; (2010) 12 SCC 112, paragraph Nos.5, 6, 7, 8 and 9.
16) In the light of aforesaid judgment, the submission of learned counsel for the petitioners is that the Court fee directed to be paid is contrary to the provisions contained under Section 7(iv-A) and (v) of the Court Fees Act, 1870.
17) On the other hand, learned Additional Chief Standing Counsel ably assisted this Court and placed reliance on certain judgments, which are referred herein below:
i. Mahrab and another Vs. Hullan Khan and others; 2015 (6) ADJ 69 (DB), paragraph No.16.
ii. Shailendra Bhardwaj and others vs. Chandra Pal and another; (2013) 1 SCC 579.
iii. Ashok Kumar Singh Vs. Smt. Meera Rathore @ Sitanshu & 6 others; (2016) 131 RD 778, paragraph Nos.16 to 18.
iv. J. Vasanthi and others Vs. N. Ramani Kanthammal (Dead) represented by Legal Representatives and others; (2017) 11 SCC 852, paragraph Nos.24 and 27.
v. (Smt.) Savita Agrawal Vs. Sarada Math Nyas through Pravajika Prabha Prana (Sanyasi) Adhyaksha and others; 2006 (100) RD 568, paragraph Nos.5 and 6.
vi. Anwarul Haq and others Vs. Ist Additional District Judge, Mau and others; 1998 (1) A.W.C. 573, paragraph Nos.4 and 5.
18) Sri Dinesh Kumar Srivastava, learned counsel for respondent No.3 submitted that both the Courts below have committed no illegality in passing the orders under challenge. He next submitted that the orders are just and valid and do not suffer from any infirmity or illegality.
19) Having heard the rival contentions advanced by learned counsel for the parties, I perused the material on record and the law reports relied upon by learned counsel for the parties.
20) To resolve the controversy involved in the present writ petition, the provisions contained under Section 7(iv-A) and (v) of the Court Fees Act, 1870 are being quoted below:
"7. Computation of fees payable in certain suits for money-
(iv-A) For cancellation or adjudging void instruments and decrees- (iv-A) In suit for or involving cancellation of or adjudging void or voidable a decree for money or other property having a market value, or an instrument securing money or other property having such value:
(1) where the plaintiff or his predecessor-in-title was a party to the decree or the instrument, according to the value of the subject matter, and (2) where he or his predecessor-in-title was not a party to the decree or instrument, according to one-fifth of the value of the subject-matter, and such value shall be deemed to be-
If the whole decree or instrument is involved in the suit, the amount for which or value of the property in respect of which the decree was passed or the instrument executed, and if only a part of the decree or instrument is involved in the suit, the amount or value of the property to which such part relates.
Explanation- The value of the property' for the purposes of this sub-section, shall be the market-value, which in the case of immovable property shall be deemed to be the value as computed in accordance with sub-section (v), (v-A) or (v-B), as the case may be.
For possession of lands, building or gardens-
(v) In suits for the possession of land, buildings or gardens-
according to the value of the subject-matter, and such value shall be deemed to be -
(I) Where the subject-matter is land, and -
(a) where the land forms an entire estate or a definite share of an estate paying annual revenue to Government, or forms part of such an estate, and is recorded in the Collector's register as separately assessed with such revenue and such revenue is permanently settled- thirty times the revenue so payable;
(b) where the land forms an entire estate or a definite share of an estate paying annual revenue to Government, or forms part of such estate and is recorded as aforesaid and such revenue is settled by not permanently-ten times the revenue so payable;
(c) where the lands pays no such revenue or has been partially; exempted from such payment, or is charged with any fixed payment in lieu of such revenue, and net profits have arisen from the land during the three years immediately preceding the date of presenting the plaint-twenty times the annual average of such net profits; but when no such net profits have arisen therefrom the market value which shall be determined by multiplying by twenty the annual average net profits of similar land for the three years immediately preceding the date of presenting the plaint;
(d) where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and does not come under clause (a), (b) or (c) above-
the market value of the land which shall be determined by multiplying by fifteen the rental value of the land, including assumed rent on proprietary cultivation, if any;
(II) where the subject-matter is a building or garden-according to the market-value of the building or garden, as the case may be.
Explanation- The word ''estate' as used in this sub-section, means any land subject to the payment of revenue for which the proprietor or former or raiyat shall have executed a separate engagement to Government or which, in the absence of such engagement, shall have been separately assessed with revenue."
21) In regard to submission advanced by learned counsel for the petitioners, he placed reliance upon a judgment in the case of Suhrid Singh Alias Sardool Singh Vs. Randhir Singh and others (Supra), which is being quoted below:
"5. Court fee in the State of Punjab is governed by the Court Fees Act, 1870 as amended in Punjab (`Act' for short). Section 6 requires that no document of the kind specified as chargeable in the First and Second Schedules to the Act shall be filed in any court, unless the fee indicated therein is paid. Entry 17(iii) of Second Schedule requires payment of a court fee of Rs.19/50 on plaints in suits to obtain a declaratory decree where no consequential relief is prayed for. But where the suit is for a declaration and consequential relief of possession and injunction, court fee thereon is governed by Section 7(iv)(c) of the Act which provides :
"7. Computation of fees payable in certain suits : The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows :
(iv) in suits -
(c) for a declaratory decree and consequential relief - to obtain a declaratory decree or order, where consequential relief is prayed, according to the amount at which the relief sought is valued in the plaint or memorandum of appeal.
In all such suits the plaintiff shall state the amount at which he values the relief sought:
Provided that minimum court-fee in each shall be thirteen rupees.
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."
6. The second proviso to Section 7(iv) of the Act will apply in this case and the valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of the said section. Clause (v) provides that where the relief is in regard to agricultural lands, court fee should be reckoned with reference to the revenue payable under clauses (a) to (d) thereof; and where the relief is in regard to the houses, court fee shall be on the market value of the houses, under clause (e) thereof.
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.
9. In this case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the "co-parcenery" and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, the court fee was computable under Section 7(iv)(c) of the Act. The trial court and the High Court were therefore not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that therefore court fee had to be paid on the sale consideration mentioned in the sale deeds."
22) The judgments relied upon by learned Additional Chief Standing Counsel are being quoted below:
i. Mahrab and another Vs. Hullan Khan and others (Supra):
"In Shailendra Bhardwaj's case (supra), the ratio laid down finds place in paras 8 to 10 of the judgment. They are quoted hereunder:-
"8. On comparing the above mentioned provisions, it is clear that Article 17(iii) of Schedule II of the Court Fees Act is applicable in cases where the plaintiff seeks to obtain a declaratory decree without any consequential relief and there is no other provision under the Act for payment of fee relating to relief claimed. Article 17(iii) of Schedule II of the Court Fees Act makes it clear that this article is applicable in cases where plaintiff seeks to obtain a declaratory decree without consequential reliefs and there is no other provision under the Act for payment of fee relating to relief claimed. If there is no other provision under the Court Fees Act in case of a suit involving cancellation or adjudging/declaring void or voidable a will or sale deed on the question of payment of court fees, then Article 17(iii) of Schedule II shall be applicable. But if such relief is covered by any other provisions of the Court Fees Act, then Article 17(iii) of Schedule II will not be applicable. On a comparison between the Court Fees Act and the U.P. Amendment Act, it is clear that Section 7(iv-A) of the U.P. Amendment Act covers suits for or involving cancellation or adjudging/declaring null and void decree for money or an instrument securing money or other property having such value.
9. The suit, in this case, was filed after the death of the testator and, therefore, the suit property covered by the will has also to be valued. Since Section 7(iv-A) of the U.P. Amendment Act specifically provides that payment of court fee in case where the suit is for or involving cancellation or adjudging/declaring null and void decree for money or an instrument, Article 17(iii) of Schedule II of the Court Fees Act would not apply. The U.P. Amendment Act, therefore, is applicable in the present case, despite the fact that no consequential relief has been claimed. Consequently, in terms of Section 7(iv-A) of the U.P. Amendment Act, the court fees have to be commuted according to the value of the subject matter and the trial Court as well as the High Court have correctly held so.
10. We are of the view that the decision of this Court in Suhrid Singh (supra) is not applicable to the facts of the present case. First of all, this Court had no occasion to examine the scope of the U.P. Amendment Act. That was a case in which this Court was dealing with Section 7(iv)(c), (v) and Schedule II Article 17(iii), as amended in the State of Punjab. The position that we get in the State of Punjab is entirely different from the State of U.P. and the effect of the U.P. Amendment Act was not an issue which arose for consideration in that case. Consequently, in our view, the said judgment would not apply to the present case."
ii. Shailendra Bhardwaj and others vs. Chandra Pal and another (Supra):
"8. On comparing the above mentioned provisions, it is clear that Article 17(iii) of Schedule II of the Court Fees Act is applicable in cases where the plaintiff seeks to obtain a declaratory decree without any consequential relief and there is no other provision under the Act for payment of fee relating to relief claimed. Article 17(iii) of Schedule II of the Court Fees Act makes it clear that this article is applicable in cases where plaintiff seeks to obtain a declaratory decree without consequential reliefs and there is no other provision under the Act for payment of fee relating to relief claimed. If there is no other provision under the Court Fees Act in case of a suit involving cancellation or adjudging/declaring void or voidable a will or sale deed on the question of payment of court fees, then Article 17(iii) of Schedule II shall be applicable. But if such relief is covered by any other provisions of the Court Fees Act, then Article 17(iii) of Schedule II will not be applicable. On a comparison between the Court Fees Act and the U.P. Amendment Act,it is clear that Section 7(iv-A) of the U.P. Amendment Act covers suits for or involving cancellation or adjudging/declaring null and void decree for money or an instrument securing money or other property having such value.
9. The suit, in this case, was filed after the death of the testator and, therefore, the suit property covered by the will has also to be valued. Since Section 7(iv-A) of the U.P. Amendment Act specifically provides that payment of court fee in case where the suit is for or involving cancellation or adjudging/declaring null and void decree for money or an instrument, Article 17(iii) of Schedule II of the Court Fees Act would not apply. The U.P. Amendment Act, therefore, is applicable in the present case, despite the fact that no consequential relief has been claimed. Consequently, in terms of Section 7 (iv-A) of the U.P. Amendment Act, the court fees have to be commuted according to the value of the subject matter and the trial Court as well as the High Court have correctly held so.
10. We are of the view that the decision of this Court in Suhrid Singh (supra) is not applicable to the facts of the present case. First of all, this Court had no occasion to examine the scope of the U.P. Amendment Act. That was a case in which this Court was dealing with Section 7(iv)(c), (v) and Schedule II Article 17(iii), as amended in the State of Punjab. The position that we get in the State of Punjab is entirely different from the State of U.P. and the effect of the U.P. Amendment Act was not an issue which arose for consideration in that case. Consequently, in our view, the said judgment would not apply to the present case.
11. The plaintiff, in the instant case, valued the suit at Rs.30 Lakhs for the purpose of pecuniary jurisdiction. However, for the purpose of court fee, the plaintiff paid a fixed court fee of Rs.200/- under Article 17(iii) of Schedule II of the Court Fees Act. Plaintiff had not noticed the fact that the above mentioned article stood amended by the State, by adding the words "not otherwise provided by this Act". Since Section 7(iv-A) of the U.P. Amended Act specifically provides for payment of court fee in case where the suit is for or involving cancellation or adjudging/declaring void or voidable an instrument securing property having money value, Article 17(iii) of Schedule II of the Court Fees Act shall not be applicable."
iii. Ashok Kumar Singh Vs. Smt. Meera Rathore @ Sitanshu & 6 others (Supra):
"16. From the perusal of proposition of law laid down in Shailendra Bhardwaj Vs. Chandra Pal (Supra), it can safely be deciphered that Court fee in declaratory suit with no consequential relief is to be paid in accordance with law under Article 17(iii) of Schedule-II of the Court Fees Act of 1870 where there is no provision elsewhere in the Act for such suits. It clearly indicates that the provisions of Article 17(iii) of the Schedule-II of Court Fees Act is residuary in nature and is attracted only in respect of category of cases not otherwise provided in the Act. The amending provisions of Court Fess Act has been well appreciated by Hon'ble Apex Court and it categorically lays down payment of Court fee in the cases where suit is for or involving cancellation or adjudging/declaring null and void,decree for money or instrument under Article 17(iii) of the Court Fees Act would not apply. The U.P. Amendment Act, therefore, is applicable in the present case despite the fact that no consequential relief has been claimed. The law laid down by the coordinate Bench of this Court in Smt.Shefali Roy Vs. Hero Jaswant Dass (supra) would not be attracted in view of Shailendra Bhardwaj case (supra).
17. In view of the categorical guidelines of the Apex Court propounded in the case referred to above, the learned Court below has rightly directed the plaintiff-appellant to pay the Court fee in terms of Article 7 (IV-A) of Court Fee Act 1870 as amended by U.P. Amendment Act.
18. In view of the reasons stated above, we are of the opinion that learned court below has rightly recorded the finding in respect to valuation of suit and for payment of court fee in accordance with Section 7(IV-A) of Court Fees Act, 1870 and has not committed any error of law."
iv. J. Vasanthi and others Vs. N. Ramani Kanthammal (Dead) represented by Legal Representatives and others (Supra):
"24. The decisions in Suhrid Singh (supra) and Shailendra Bhardwaj (supra) have to be understood in their proper perspective. There was U.P. Amendment in Shailendra Bhardwaj (supra). In Suhrid Singh (supra) the Court was dealing with a different situation. Be that as it may, the valuation of a suit and payment of court fee shall depend upon the special provision in a State if provided for. The view taken by the Madras High Court in Chellakannu (supra), in our considered opinion, is the correct exposition of law.
27. On a perusal of the decision in Rathnavarmaraja (supra), we find the controversy had arisen with regard to proper valuation and the stand of the defendant was that the court fee had not been properly paid and in that context, the Court has held what as we have reproduced hereinabove. The issue being different, the said decision is distinguishable.
We may reiterate that proper valuation of the suit property stands on a different footing than applicability of a particular provision of an Act under which court fee is payable and in such a situation, it is not correct to say that it has to be determined on the basis of evidence and it is a matter for the benefit of the revenue and the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. It is because the Act empowers the defendant to raise the plea of jurisdiction on a different yardstick."
v. (Smt.) Savita Agrawal Vs. Sarada Math Nyas through Pravajika Prabha Prana (Sanyasi) Adhyaksha and others (Supra):
"5. Under section 7(iv0A) of the Court Fees Act, 1870 (as amended by State of U.P. applicable to Uttaranchal), in a suit for cancellation of an instrument (including sale deeds), the property involved is required to be valued at the amount mentioned in instrument or value of the property to which such instrument relates. It is further provided in the explanation to said sub-section (iv-A) that ''value of the property' for the purposes of the sale deed shall be market value which in the case of immovable property shall be deemed to be the value computed in accordance with sub-section (v), (v-A), or (v-B), as the case may be. Section 7(v) of the Court Fees Act, 1870, provides that where the revenue is settled in respect of a land the market value of such land shall be assessed at 30 times of such revenue. In view of said provision of law, neither the suit appears to be under valued, nor the Court fee paid appears to be insufficient. Therefore, finding on issue No.3 given by the Trial Court needs no interference.
6. On issue No.5, it is argued on behalf of the learned Counsel for the revisionist that in view of provisions of section 48 of the Indian Trusts Act, 1882, all the trustees are necessary to be impleaded for maintaining the suit on behalf of the trust. This Court agrees with the submission of learned Counsel for the revisionist that the suit should have been filed on behalf of a trust by all the trustees unless the person is duly authorized to act in this behalf. However, mere that argument doesn;t help the defendant/revisionist. For throwing a suit on said ground, the defendant should have pleaded which of the trustees of the trust are left out and not made a party to the suit. The defendant/revisionist failed to show or name the trustee, who is not impleaded or has not authorized the plaintiff to maintain the suit. In the circumstances, this Court is of the view that the Trial Court has rightly decided issue No.5 in negative and in favour of the plaintiff."
vi. Anwarul Haq and others Vs. Ist Additional District Judge, Mau and others (Supra):
"4. I have heard Mr. M. A. Siddiqui, learned counsel for the petitioner. He has raised the following submissions :
Firstly, he submitted that the plaintiff/petitioner has claimed only declaration and nothing more or less. He further submitted that the view of lower courts is wrong. He has invited my attention to Smt. Shefali Roy v. Hero Jaswant Dass and others, 1992 (14) AWC 1000. There is no doubt regarding the proposition that the court fee is to be paid upon the averments of the plaint and the relief claimed. I have gone through the averments and in substance the case is covered under Section 7 (iv-A) which is quoted with advantage.
"(ivA). For cancellation or adjudging void Instruments and decree. -- in suits for or involving cancellation of OF adjudging void or voidable a decree for money or other property having a market-value, or an instrument securing money or other property having such value."
5. In substance the suit is for cancellation of the sale deed and there is allegation in the plaint that it has been obtained by fraud, etc. as he has not signed on it. I find no jurisdictional error or abuse of power on the part of lower courts or any miscarriage of Justice. Thus, there is no force in the writ petition, therefore, it is dismissed at the admission stage."
23) This Court examined the provisions referred above, the judgments relied on and the prayer of the plaint, which is as under:
A. For cancellation of sale deed registered as Bahi No.01, Jild No.3553, page 81 to 106, serial No.827 dated 15.02.2014 and the land be provided by giving information to Sub Registrar, Akbarpur, District Ambedkarnagar with further prayer that the decree of permanent injunction be granted in regard to the land v, c, l, n No.310 and 311 मि. rakba area 8 viswa situated at village Palai Kalyanpur, Pargana and Tehsil Akbarpur, District Ambedkarnagar by restraining the respondents from not to interfere in the peaceful possession on the land and building in dispute.
B. To award cost of the suit.
C. Any other relief, as the Court may deem fit and proper in the facts and circumstance of the case.
24) I perused the prayer of the plaint, which clearly demonstrates that it is for cancellation of sale deed and for the grant of permanent injunction. Learned counsel for the petitioners placed reliance upon the case of Suhrid Singh Alias Sardool Singh (Supra), which was subsequently distinguished in the case of Shailendra Bhardwaj and others (Supra).
25) Hon'ble Supreme Court further considered the ratio of the judgment of Suhrid Singh Alias Sardool Singh (Supra) in the case of J. Vasanthi and others (Supra) and held as under:
"20. In this context, we may profitably refer to the pro- nouncement of this Court in Suhrid Singh alias Sardool Singh v. Randhir Singh and others. In the said case, the Court referred to several elaborate prayers contained in the plaint and summarized the same. The Court took note of the fact that the issue had come before the trial court which had come to hold that prayers relating to the sale deeds amounted to seeking cancellation of the sale deeds and, therefore, ad volerem court fee was payable on the sale con- sideration in respect of the sale deeds. The said view was af- firmed in the revision. The Court addressed the core issue pertaining to court fee payable in regard to the prayer for a declaration that the sale deeds were void and not "binding on the coparcenary", and for the consequential relief of joint possession and injunction. After referring to the provisions 8 (2010) 12 SCC 112 of the Court Fees Act, 1870 as amended in Punjab (as the controversy arose from the High Court of Punjab and Haryana), the Court held:
"Where the executant of a deed wants it to be an- nulled, 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/con- veyance, can be brought out by the following illus- tration 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 execu- tant 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 con- sideration stated in the sale deed. If B, who is a non-executant, is in possession and sues for a dec- laration 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 the Sec- ond Schedule of the Act. But if B, a non-executant, is not in possession, and he seeks not only a decla- ration that the sale deed is invalid, but also the con- sequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of the Act.
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 valua- tion shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7."
22. In Shailendra Bhardwaj and others v. Chandra Pal and another9, the Court was dealing with an issue whether suit filed seeking a declaration that a will and a sale deed are void resulting in their cancellation fell under Section 7(iv- A) of the Court Fees Act, 1870 as amended by the U.P. Amend- ment Act (Act 19 of 1938) or Article 17(iii) of Schedule II of the Court Fees Act, 1870 for the purpose of valuation. Be it noted, in the said case the trial court had taken the view that the court fee had to be paid under Section 7(iv-A) and the High Court has concurred with the same. The two-Judge Bench took note of the provisions of the Court Fees Act, 1870 9 (2013) 1 SCC 579 as amended by the U.P. Amendment Act (Act 19 of 1938) and after referring to the same in detail, held thus:
"On comparing the abovementioned provisions, it is clear that Article 17(iii) of Schedule II of the Court Fees Act is applicable in cases where the plaintiff seeks to obtain a declaratory decree without any consequential relief and there is no other provision under the Act for payment of fee relating to relief claimed. Article 17(iii) of Schedule II of the Court Fees Act makes it clear that this article is applica- ble in cases where the plaintiff seeks to obtain a declaratory decree without consequential reliefs and there is no other provision under the Act for payment of fee relating to relief claimed. If there is no other provision under the Court Fees Act in case of a suit involving cancellation or adjudging/declar- ing void or voidable a will or sale deed on the ques- tion of payment of court fees, then Article 17(iii) of Schedule II shall be applicable. But if such relief is covered by any other provisions of the Court Fees Act, then Article 17(iii) of Schedule II will not be applicable. On a comparison between the Court Fees Act and the U.P. Amendment Act, it is clear that Section 7(iv-A) of the U.p. Amendment Act cov- ers suits for or involving cancellation or adjudging/declaring null and void decree for money or an instrument securing money or other property having such value. "
26) On over all consideration, it is clear that Article 17(iii) of Schedule II of the Court Fees Act is applicable in the cases, where the plaintiff seeks to obtain a declaratory decree without any consequential relief and there is no other provision under the Act for payment of fee relating to relief claimed, but if such relief is covered by any other provision of the Court Fees Act, then Article 17(iii) of Schedule II of the court Fees Act will not be applicable.
27) On a comparison between the Court Fees Act and the U.P. Amendment Act, it is clear that Section 7(iv-A) of the U.P. Amendment Act covers suits for or involving cancellation or adjudging/declaring null and void decree for money or an instrument securing money or other property having such value.
28) The suit in this case was filed for cancellation of sale deed, therefore, the suit property covered by the sale deed has to be valued. Since Section 7(iv-A) of the U.P. Amendment Act specifically provides payment of Court fees in case where the suit is for or involving cancellation or adjudging/declaring null and void decree for money or an instrument, Article 17(iii) of Schedule II of the Court Fees Act would not apply. The U.P. Amendment Act, therefore, is applicable in the present case.
29) Consequently, in terms of Section 7(iv-A) of the U.P. Amendment Act, the Court fees has to be computed according to the value of the subject matter and the trial Court and appellate Court directing the petitioner to deposit the insufficient Court fee have committed no error in law.
30) In the case of Suhrid Singh Alias Sardool Singh (Supra), the scope of the U.P. Amendment Act was not under consideration. That was a case in which the Court was dealing with Section 7(iv)(c) and Schedule II of the Article 17(iii) as amended in the State of Punjab. The position in the State of Punjab is entirely different from the State of U.P. and the effect of the U.P. Amendment Act was not an issue, which arose for consideration in the above case. Consequently, in the opinion of this Court, the judgment in the case of Suhrid Singh Alias Sardool Singh (Supra) would not apply to the present case.
31) In view of the observation made above, this Court declines to interfere in the impugned orders.
32) The writ petition lacks merit and is hereby dismissed. However, direction is issued to the trial Court to permit the petitioners to pay the requisite Court fee, as directed under the impugned orders within a period of two months from the date of production of a certified copy of this order and to decide the suit expeditiously.
33) There shall be no order as to costs.
Order Date :- 28.08.2019 Adarsh K Singh [Irshad Ali, J.]