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Judgment
Gurmeet Singh Sandhawalia, J.
Challenge in the present revision petition is to the order dated 30.09.2011 (Annexure P5), passed by the Civil Judge (Jr. Divn.) Faridabad, whereby the application filed by defendant No. 6 under Order 7 Rule 11 CPC has been dismissed, on account of the fact that cause of action has been disclosed in the plaint and that the plaintiffs are not party to the sale deed dated 22.12.2010, which is challenged and neither they are claiming possession. Thus, the requirement of affixing ad valorem Court fees is not needed and the suit is within limitation as the lease receipt is dated 12.02.2008 and the sale deed is dated 22.12.2010, whereas the suit is filed on 22.12.2011. The argument raised by counsel for the petitioner is that once cancellation of the sale deed is prayed for, the petitioner is also impliedly seeking possession of the plots and therefore, the Court was not justified in dismissing the application. It is, accordingly, submitted that they were required to pay ad valorem Court fees as they had prayed for cancellation of the sale deed and therefore, the substantive relief, as prayed for, should have been looked into. Reliance has been placed upon the judgment of the Apex Court in Suhrid Singh @ Sardool Singh Vs. Randhir Singh and Others, , which has been followed by the Division Bench judgment of this court in Tarsem Singh & others v. Vinod Kumar & others 2014 (1) ICC 1054.
A perusal of the plaint filed by respondents No. 1 to 6 would go on to show that they filed the suit for declaration of consequential relief of permanent injunction mainly on the ground that defendants No. 1 to 5 had advertised the pre-launched scheme of Group Housing Society in the month of 2005 and allured the public at large on the strength of a licence No. 70/2010, issued by the Department of Town & Country Planning. The plaintiffs being interested to purchase the plots at the sectors proposed in resale, had purchased plots and the same had been transferred vide receipt dated 12.02.2008, against a sum of Rs. 3 lacs in one case. Similar instances were also given regarding other plaintiffs also. When the plaintiffs had approached the said defendants for documents of transfer of plots in their favour and on account of non-allotment and non-delivery of possession, a criminal complaint had been filed against them in the Court of the JMIC, Faridabad and even an FIR was registered on 23.07.2011 under various provisions of the IPC. A legal notice had been sent on coming to know that the defendants No. 1 to 5 are going to sell their projects to defendant No. 6 and get the licence transferred and on 30.08.2011, they came to know that vide sale deed dated 22.11.2010, the defendants No. 1 to 5 had sold the land/project and even a mutation had been recorded in favour of defendant No. 6. Accordingly, request had been made to the said defendant not to further allot the same as they had already purchased the plots and flats and not to raise construction.
Resultantly, the application under Order 7 Rule 11 CPC came to be filed, submitting that there was no cause of action against the said defendants and there was no contract inter se the parties. The sale deed dated 22.12.2010 for Rs. 22,69,10,000/- was under challenge and therefore, ad valorem Court fees was required to be affixed. The issue of limitation was also raised that the last transaction was of 08.12.2008 and the suit had been filed on 05.09.2011 and it was barred by limitation. It was also pleaded that the plaintiffs have not claimed the plots and therefore, the suit was not maintainable and at the maximum, a suit by way of specific performance could have been filed and a joint plaint was not maintainable and accordingly, rejection was sought for.
The application was opposed on the ground of being abuse of process of law and outcome of delaying tactics. The petitioner submitted that the plaint was maintainable and that rules of procedures are handmaids of justice and the plaint had to be read as a whole and the issue of limitation was a mixed question of law and fact and could be disposed of after holding trial. The application was opposed by the respondents on the ground that the plaintiffs not being party to the sale deed were not required to pay ad valorem Court fee.
As noticed above, the Trial Court came to the conclusion that 6 plots had been purchased vide various sale deeds and construction had not started and FIR had been lodged and the land had been sold further and therefore, there was valid cause of action and the plaintiffs could not be non-suited at the threshold. Resultantly, the application was dismissed.
The law on the rejection of the plaint is very clear that only the plaint is to be looked at in the initial stage and the resort to rejection of the plaint is not to be done in a routine manner and only in exceptional cases. Reference can be made to the judgment of this Court in Rajesh Grover Vs. Smt. Rita Khurana and Others, . Relevant observations read as under:
"10. The Court should be circumspect in rejecting a plaint at the threshold as it entails very serious civil consequences. The Court should exercise this power only is those cases where it comes to the clear conclusion that any of the conditions enumerated in Clauses (a) to (f) are satisfied and it should be so done in exceptional-circumstances. The truthfulness of narration of facts in the plaint or the written statement are not to be judged at the stage of rejection of plaint. That is a matter of evidence which the Court shall go into at the trial of the case. The weakness or the strength of the case of the parties is not to be judged at that stage. A distinction is to be drawn between rejection of a plaint and dismissal of a suit."
Even in the present case, as notice above, the dispute is regarding purchase of plots. The plaintiffs have not claimed possession but are only challenging the transfer of licence by virtue of the sale deed under challenge. In the application itself, filed under Order 7 Rule 11, plea has been taken that the suit is not maintainable in the form it has been filed and suit for possession by way of specific performance should have been filed. The effort to distinguish the judgment in Suhrid Singh''s case (supra) on the ground that once the declaration was sought that the sale deed dated 22.12.2010 be declared null and void and cancelled, the ad valorem Court fee would be payable.
The said submission cannot be accepted. The Apex Court has clearly laid down that if a non-executant seeks annulment of a deed, he has to seek a declaration that it is invalid and non est but where the prayer of consequential relief of possession is not asked for, then only fixed Court fees is to be paid. Relevant observations read as under:
"6. 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 me 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 me consequential relief of possession, he has to pay an advalorem 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 valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7."
The said judgment has been further elucidated by a Division Bench of this Court in Tarsem Singh (supra) wherein two categories would be liable to pay ad valorem Court fee, one where an executant of a document wants a deed to be annulled and where the non-executant not in possession seeks for the relief of possession, he is required to pay ad valorem Court fees. In the case of a non-executant, seeking annulment of a deed to which he is not a party, he is only to pay Court fees as per Article 17 (iii) of the Second Schedule of the Court Fee Act, 1870. Relevant observations read as under
"5. In view of the said example given an example in para No. 6 of the judgment and the finding recorded in para No. 7, we hold as follows:--
i) If the executant of a document wants a deed to be annulled, he is to seek cancellation of the deed and to pay advalorem Court fee on the consideration stated in the said sale deed.
ii) But if a non-executant seeks annulment of deed i.e. when he is not party to the document, he is to seek a declaration that the deed is invalid, non-est, illegal or that it is not binding upon him. In that eventuality, he is to pay the fixed Court fee as per Article 17(iii) of the Second Schedule of the Act.
iii) But if the non-executant is not in possession and he seeks not only a declaration that the sale deed is invalid, but also a consequential relief of possession, he is to pay the advalorem Court fee as provided under Section 7(iv)(c) of the Act and such valuation in case of immovable property shall not be less man the value of the property as calculated in the manner provided for by Clause (v) of Section 7 of the Act.
In view of the aforesaid judgment of the Hon''ble Supreme Court, the issue leading to payment of the Court fee is decided in terms of the parameters laid down above. The single bench judgments rendered prior to the Supreme Court judgment mentioned above run counter to the aforesaid view and thus overruled. The Reference is answered accordingly. The Single Bench judgments rendered, so far as they run counter to the aforesaid view, are thus overruled."
Accordingly, in view of the above observations, this Court is of the opinion that no fault can be found in the well reasoned order passed by the Trial Court and the same does not require any interference under the revisional jurisdiction of this Court. Consequently, the present revision petition is dismissed.