Narayan Singh Dhanik, J
Plaintiff/appellant has preferred this appeal against the order dated 9.3.2018 passed by the Ist Additional Civil Judge (S.D.), Haridwar in O.S. No.
139/2013.
Facts, in brief, are that the plaintiff/appellant filed a suit being O.S. No. 139/2013 for cancellation of agreement to sale dated 16.8.2010, wherein the
Court below framed issue no. 2 regarding payment of court fees. The Court below vide the impugned order has decided the said issue no. 2 and has
held that since the plaintiff has instituted the suit for declaring an instrument/document to be null and void, therefore, the plaintiff is liable to pay the
court fees in terms of Section 7(iv-A) of the Court Fees Act, 1870 (for brevity, hereinafter referred to as the ‘Act’) and accordingly directed
the plaintiff to pay the court fees. Being aggrieved, the plaintiff has filed the present appeal.
Heard learned Counsel for the parties and perused the record.
For the sake of convenience, Section 7(iv-A) of the Act is reproduced as under:
“For cancellation or adjudging void instruments and decrees.â€"(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 beâ€"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.â€"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.â€
It is the contention of learned Counsel for the plaintiff/appellant that the plaintiff has filed the suit for cancellation of agreement to sale, and not for
cancellation of a sale deed, and he is not seeking possession over any property and, therefore, plaintiff is not liable to pay the ad valorem court fees in
terms of Section 7(iv-A) of the Act and the provision of this section does not apply in the present case. Hence, the Court below has wrongly decided
the aforementioned issue. In support of his contention, learned Counsel for the plaintiff/appellant cited the judgment rendered by the Hon’ble Apex
Court in State of U.P. v. Ramkrishan Burman (through his LRs) & Others, AIR 1971 SC 87. Paragraphs 5 and 6 of the said judgment are reproduced
as under:
“5. A decree for declaration of title to money or other property is not a decree for money or other property. In our judgment the expression ""decree
for money or other property"" means only a decree for recovery of money or other property. It does not include a decree concerning title to money or
other property.
6. It was urged that in any event the plaintiff had sued for adjudging void or voidable an ""instrument"" securing money or other property having market
value. But a decree in invitum is not an instrument securing money or other property; such a decree is a record of the formal adjudication of the Court
relating to a right claimed by a party to a suit. It does not by its own force secure money or property. A consent decree in certain cases may be
regarded as an instrument securing money or other property, where the decree proceeds upon a contract which had that effect, but that is only
because a consent decree is a record of the contract between the parties to which is super added the seal of the Court. In our view the High Court
was right in holding that the court-fee paid on the plaint was proper. It may be pointed out that the plaintiff had claimed nothing more than a
declaration with regard to certain properties.â€
Learned Counsel for the plaintiff/appellant argued that this judgment (supra) has been rendered by a three-Judges Bench and the same has not been
considered by a two-Judges Bench of Hon’ble Apex Court while deciding the controversy in Shailendra Bhardwaj & Others v. Chandra Pal &
Another, (2013) 1 SCC 579, which is being relied upon by the learned Counsel for the defendants/respondents.
Learned Counsel for the plaintiff/appellant contended that the court fees in the present case is payable in terms of Article 17 of the Schedule II of the
Act. In support of his contention, learned Counsel cited the judgment rendered by the Allahabad High Court in case of Smt. Shefali Roy v. Hero
Jaswant Dass & Others, AIR 1992 Allahbad 254, wherein it has been held that the word “securing†in Section 7(iv-A) of the Act relates not only
to money part but also other property and since the suit was for declaration that plaintiff is owner of suit property and that alleged sale deed is null and
void, the clause (iv-A) is inapplicable and the court fee is payable under Article 17 of the Schedule II of the Act. Allahabad High Court in paragraph
22 has further held as under:
“22. The payment of Court-fee depends upon the averments of the plaint and the relief claimed and not on the averments of the written statement.
A suit for mere declaration that the plaintiff is owner of the property in suit as claimed by the plaintiff in the instant case and incidentally claiming a
declaration that the alleged sale deed be declared null and void, does not fall within the ambit of Section 7(iv-A) (State of U.P. Amendment).â€
Learned Counsel for the defendants/respondents argued that in the present case, even though the plaintiff has filed the suit for cancellation of
agreement to sale and for declaring the same as null and void, he has to pay the court fees in terms of Section 7(iv-A) of the Act. In support of his
argument, learned Counsel cited the judgment rendered by this Court on 8.12.2017 in AO No. 642 of 2017, Anil Kumar Ghosh & Others v. Swami
Shashwatanand & Others, wherein this Court has observed as under:
“Since the value of the property has been mentioned in the instrument/sale deed, and the instrument/sale deed has been put to challenge by seeking
decree of declaration, therefore, the learned trial court has committed illegality in directing the plaintiffs to value the suit on the amount of 2,84,44,295/-
. The proper course for the trial court was to direct the plaintiffs to value the suit at the amount mentioned in the instrument i.e. sale deed dated
28.02.2012. In such view of the matter, the impugned order is unsustainable and the appeal deserves to be allowed.â€
Learned Counsel for the defendants/respondents drew attention of this Court towards the definition of “Instrument†given in Section 2(14) of the
Indian Stamp Act and argued that the in the present case, the agreement to sale is also covered under the definition of instrument. Section 2(14) of the
Indian Stamp Act reads as under:
“Instrument†includes every document and record created or maintained in or by an electronic storage and retrieval device or media by which any
right or liability is, or purports to be, created, transferred, limited, extended, extinguished or recorded.â€
Learned Counsel for the defendants/respondents also relied on the judgment of Hon’ble Apex Court rendered in Shailendra Bhardwaj & Others,
(2013) 1 SCC 579. In paragraph 8 of this judgment, the Hon’ble Apex Court has held as under:
“……… 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.â€
Learned Counsel for the defendants/respondents also relied on the judgment of Allahabad High Court rendered in Kailash Chand v. Vth A.C.J.,
Meerut & Others, AIR 1999 Allahabad 151, in which the Allahabad High Court referred to the Full Bench judgment of that Court in the case of Smt.
Bishun Shri v. Smt. Suraj Muki (AIR 1966 All 563) where the majority view of the Court after considering the provisions of Indian Succession Act
and the Court Fees Act was that the word “instrument†in Section 7(iv-A) includes formal or legal documents in writing. The Court relied on para
6 of this judgment which reads as under:
“………“Secures†as used in a contract whereby a vendor agrees to execute a conveyance thereof as soon as the vendee secures the
payment of purchase money, means not a payment in money but the giving by the vendees of something by means whereof payment at some future
time can be procured or compelled.â€
Learned Counsel for the defendants/respondents further relied on a judgment of Madhya Pradesh High Court rendered on 10.11.2011 in case of
Vinod Singhai v. Kanhaiyalal, where it has been held as under:
“The present is not the suit for bare declaration, but the petitioner-plaintiff in substance is seeking performance of affirmative agreement dated 19-
02-2011.
The trial court therefore justified directing the petitioner-plaintiff to affix ad-valorem court fees. The Courts, as per decision of Full Bench in Subhash
Chand Jain v. the Chairman, M.P. Electricity Board, AIR 2001 MP 88, can intervene when there is an attempt to undervalue the plaint and the
relief.â€
Learned Counsel for the defendants/respondents also submitted that in a similar matter, a coordinate Bench of this Court passed an order on 8.4.2016
in Civil Revision No. 1/2016 holding that the value of the property, for which the instrument was executed, shall be taken into consideration for the
valuation of suit and payment of court fees. The said order is reproduced as below:
“Mr. Narendra Bali, Advocate, for the revisionist.
Mr. Nikhil Singhal, Advocate, for the respondents.
Having heard the rival contentions of learned Counsel for the parties, it transpires that a suit was instituted for cancellation of the agreement to sale.
Initially the suit was rightly valued on the valuation of the subject-matter, but later on an amendment application was moved by the plaintiff to the
effect that the suit should be valued on the annual assessment of the municipality.
This contention of the plaintiff is apparently against the law, as postulated in Section 7(iv)(a) and (iv-A) of the Court Fees Act, which contemplate the
payment of Court Fees for cancellation and adjudging void instruments and decrees. This provision speaks that where the instrument is involved in the
suit wherefor the cancellation has been sought, then the value of the property, wherefor the instrument was executed, shall be taken into consideration
for making the valuation of the suit and payment of Court Fees.
In view of what has been set forth above, I find no force in this revision.
It is hereby dismissed.â€
Learned Counsel for the defendants/respondents submitted that the aforementioned order dated 8.4.2016 was not challenged and it has attained the
finality.
So far as the argument of learned Counsel for the plaintiff/appellant that in the present case the plaintiff is already in possession of the property and he
is not seeking the possession but only seeking the relief of cancellation of agreement to sale and reliance on the judgment of Ramkrishan Burman case
(supra) is concerned, this Court is of the opinion that the said precedent is not attracted in the present case. The said case was regarding decree for
declaration of title to the money, while the case in hand is for cancellation of agreement to sale and, therefore, the said precedent is not applicable in
the present case. In Kailash Chand v. Vth A.C.J., Meerut & Others (referred to hereinabove), the Allahabad High Court has observed in paragraph
17 as under:
“Thus on facts the decision of the Hon’ble Supreme Court in State of U.P. v. Ram Krishan Burman (AIR 1971 SC 87) does not apply to the
present case. That was a case in which the Court has held that a decree declaring the title to the money or other property is simply a record of formal
adjudication relating to a right claimed by the parties to the suit and does not amount to an instrument securing money or other property having market
value and it was on such finding that the Supreme Court held that Section 7(iv-A) of the Court Fees Act (as applicable to the State of U.P.) was not
attracted and the Court fee payable was under Schedule-II Article 17(iii).â€
The controversy has already been settled by the Hon’ble Apex Court in Shailendra Bhardwaj & Others v. Chandra Pal & Another (referred to
hereinabove). Hence, considering the settled legal position and the facts of the present case, this Court is of the considered opinion that since the
plaintiff has instituted the present suit seeking decree for cancellation of the agreement to sale, therefore, valuation of such suit shall be done as per
the value mentioned in the instrument in terms of Section 7(iv-A) of the Act and ad valorem court fee has to be paid inasmuch as the relief covered by
Section 7(iv-A) of the Act attract ad valorem court fees on the entire valuation of the suit, and Article 17 of Schedule II of the Act would not be
applicable in such cases as the same being applicable only to such suits which are not otherwise provided in the Court Fees Act.
In view of the foregoing discussion, no interference is being called for in the impugned order. I find no merit in the present appeal. It is hereby
dismissed. Interim order, if any, stands vacated.
