Ram Chand Gupta, J.
C.M. No. 10295-CII of 2011
Application is allowed subject to all just exceptions.
Civil Revision No.2565 of 2011
1. The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 23.3.2011, Annexure P4, vide which learned Additional Civil Judge, Senior Division, Panipat, allowed application of respondent No.1 with a further prayer to dismiss application of respondent No.1
2. I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned order passed by learned trial Court.
3. Facts relevant for the decision of present revision petition are that a civil suit was filed by petitioner-plaintiff against respondents defendants for declaration to the effect that investment of Rs.1,00,00,000/- (Rupees One crore) made with respondent-defendant No.2 vide Folio No.4848998/96 dated 10.3.2008 was, in fact, made by plaintiff, though in the name of his son, i.e., respondent-defendant No.1 and that he is only entitled to receive the maturity value of the said investment with a consequential relief of mandatory injunction directing respondent-defendant No.1 to surrender whole of such maturity value in respect of the said investment, inclusive of all accrued benefits in favour of the plaintiff and also seeking mandatory injunction directing respondent-defendant No.2 to pay whole of such maturity value, inclusive of all accrued benefits, directly and exclusively to the plaintiff in his saving account maintained by him with consequential relief of permanent injunction restraining defendant No.1 for ever from claiming anything out of the said investment or its maturity value and also restraining defendant No.2 from paying anything out of the said investment amount to anybody else except the plaintiff.
4. An application under Order VII Rule 11 of the CPC for rejection of the plaint was filed by respondent-defendant No.1 on the ground that petitioner-plaintiff is claiming recovery of Rs. 1,00,00,000/- alongwith up-to-date interest etc. and that the present market value of the said infrastructural bonds comes to Rs. 1,11,89,000/-, hence, he is required to pay ad valorem court fee on the said amount and, however, as the court fee has not been paid, the plaint is liable to be rejected.
5. The application has been contested by present petitioner plaintiff, inter alia, on the ground that matter regarding question of court fee is exclusively between the State and the Subject and defendant No.1 has nothing to do with the same.
6. Learned trial Court decided the said application and directed present petitioner-plaintiff to affix ad valorem court fee on the suit amount of Rs. 1,00,00,000/- by observing as under:-
"Since the plaintiff has in fact sought the recovery of Rs.1 crore alongwith other accrued benefits it would necessarily mean that it is indeed a suit for recovery. The plaintiff is thus directed to pay ad valorem court fee on the disputed amount of Rs.1 crore. The application under adjudication is thus disposed of with the observation that the plaintiff shall affix ad valorem court fee on the suit amount of Rs.1 crore on or before 23.4.2011 failing which the plaint shall stand returned."
7. It has been contended by learned counsel for the petitioner plaintiff that main relief sought by petitioner-plaintiff is of declaration and relief of mandatory injunction is only ancillary one and, hence, it is contended that it cannot be treated as suit for recovery and so he is not liable to pay ad valorem court fee. On the point he has also placed reliance upon
8. A careful perusal of aforementioned judgment shows that in that case only suit for declaration was filed without seeking any relief of mandatory injunction and that declaration was regarding some G.P. Notes, already in possession of the plaintiff and the same had not matured so far and hence, there was no question of seeking recovery of said G.P. Notes from defendant in the said suit and hence, it was held that plaintiff was not required to pay ad valorem court fee.
9. Matter regarding Court fee has been settled by a Full Bench of this Court In Niranjan Kaur v. Nirbigan Kaur, (1982) 84 P.L.R. 127 by observing that the Court in deciding the question of court fee should look into the allegations made in the plaint to find out what is the substantive relief that is asked for and that mere astuteness in drafting the plaint will not be allowed to stand in the way of the Court looking at the substance of the relief asked for. It has been further observed that where the main relief is that of the cancellation of the deed, and the declaration, if any, is only a surplusage, the case would not be covered u/s 7(iv)(c) of the Act and in that case main relief in the main suit is held to be cancellation of the sale-deed, the only provision applicable is Article 1, Schedule I of the Act. Relevant paragraphs of the same reads as under:-
"7. It is well settled that the Court in deciding the question of Court fee should look into the allegations made in the plaint to find out what is the substantive relief that is asked for. Mere astuteness in drafting the plaint will not be allowed to stand in the way of the Court looking at the substance of the relief asked for. Thus, in each case, the Court has to find out the real relief claimed by the plaintiff in the suit. Where the main relief is that of cancellation of the deed, and the declaration, if any, is only a surplusage, the case would not be covered u/s 7(iv)(c) of the Act, because in a suit under that clause the main relief is that of a declaration and the consequential relief is just ancillary. In this respect, reference may again be made to Mt. Zeh-id-Nisa ''s case (supra), wherein it has been observed as follows:-
''It seems obvious that the consequential relief referred to in Section 7(iv)(c) could not mean a substantive relief, the valuation of which is separately provided for in the Court Fees Act. If it were so held, a plaintiff could easily evade payment of the necessary Court-fee on the substantive relief by prefacing it with a declaration as to his rights. Every suit involves the establishment of certain rights of the plaintiff as a necessary preliminary to the grant of the relief claimed by him. But the addition of a prayer for a declaration as to such rights cannot convert a suit for a substantive relief into one for a declaratory decree where consequential relief is prayed for within the meaning of Section 7(iv)(c) Court-fees Act. It is significant that the valuation of the relief in cases falling within the scope of Section 7(iv)(c) is left to the plaintiff. This is presumably because the ''consequential relief contemplated by the section is some ancillary relief to which the plaintiff becomes entitled as a necessary result of the declaration, but for which no separate provision is made in the Act. The essence of the relief in such cases lies in the declaratory part and the consequential relief being merely an auxiliary equitable relief, its valuation seems to have been left to the . plaintiff. The meaning of the expression ''consequential relief and used in Section 7(iv)(c), Court-fees Act, was recently considered by a Full Bench of the Allahabad High Court (consisting of five Judges) in Kalu Ram v. Babu Lal, 54 All. 812 and it was held that the expression ''consequential relief means some relief, which would follow directly from the declaration given the valuation of which is not capable of being definitely ascertained and which is not specifically provided for anywhere in the Act and cannot be claimed independently of the declaration as a ''substantial relief. It follows, therefore, that if the relief claimed in any case is found in reality to be tantamount to a substantial relief and not a mere ''consequential relief in the above sense, the plaintiff must pay Court-fee on the substantial relief.''
8. It is the 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 u/s 7(iv)(c) of the Act, the main and substantive relief should be that of a 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.33 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 (iii) 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. To say in the plaint, that it be declared that the sale deed, got executed from her as a result of the fraud, was void and not binding on her, does not convert the suit into one for a declaration with the consequential relief of possession so as to fall within the provisions of Section 7(iv)(c) of the Act. To such a suit, the only article applicable Article 1, Schedule I of the Act, and for that proposition, further support can be had from a Full Bench decision of the Allahabad High Court in Kalu Ram''s case (supra), also wherein as regards the valuation of the relief as to the cancellation of the alternation, it has been held that such a relief falls neither u/s 7(iv)(c) nor under Schedule II Article (iii), but under the residuary article 1 Schedule I of the Act."
10. Hence, plaint as a whole is to be seen for deciding the factum of payment of court fee.
11. In the present case, a careful perusal of plaint filed by petitioner-plaintiff shows that he has not only sought relief of declaration, however, he has also sought relief of mandatory injunction directing respondent-defendant No.2 to make the payment of infrastructural bonds worth Rs.1 crore to him and not to respondent-defendant No.1, in whose name the said infrastructural bonds were purchased. It is not the case that there is any maturity period of said infrastructural bonds and that the payment cannot be made by respondent-defendant No.2 to respondent defendant No.1 or to petitioner-plaintiff, at mis stage. Rather payment of said infrastructural bonds is payable on demand. Hence petitioner-plaintiff is seeking mandamus against respondent-defendant No.2 directing it to make payment of the infrastructural bonds to him.
12. In view of these facts, petitioner-plaintiff is liable to pay ad valorem court fee on the disputed amount of Rs.1,00,00,000/- and hence, it cannot be said that any illegality or material irregularity has been committed by learned trial Court in passing the impugned order or that a grave injustice or gross failure of justice has occasioned thereby, warranting interference by this Court.
13. Moreover, law has been well settled by Hon''ble Apex Court in
Hence, the present revision petition is, hereby, dismissed being devoid of any merit.
