Sohan Singh vs Tan Singh

S.S. Kang, J.

Since common questions of law permeate the two Civil Revision Petitions Nos. 408 and 409 of 1985, they invite a common judgment. The factual matrix shall be taken from Civil Revision No. 408 of 1985.

Sohan Singh, petitioner, filed a suit for a declaration to the effect that he was in possession of the suit land, described in the heading of the plaint and the defendants had no right or interest in the land and that the registered deed dated 3rd December, 1981, in respect of the abovementioned land was against law and facts and the said gift in respect of onehalf share of the land, measuring 13 Kanals 10 Marlas in favour of defendants Nos. 1 and 2, based on fraud and misrepresentation is null and void and not binding on the plaintiff.

During the trial of the suit, issues were framed on 29th August, 1984 and the case was adjourned for the plaintiff''s evidence on 28th November, 1984. On that day the defendants moved an application under Order 14, Rule 2, Civil Procedure Code, for treating issue No. 7 as preliminary issue. This application was resisted by the plaintiff. However, the application was allowed and issue No. 7 was ordered to be treated as preliminary. Being dissatisfied the plaintiffpetitioner has filed this revision petition.

Issue No. 7 reads as under : "Whether the suit is bad for the purposes of Courtfee and jurisdiction ?

The learned trial Court on the pleadings of the parties came to the conclusion that no evidence was needed to determine this issue. Indeed the question of Courtfee in a suit has to be determined on the basis of the allegations made in the plaint and depended on the relief which was claimed in the suit. From a perusal of the plaint, it is clear that the main prayer of the plaintiff was that the gift deed dated 3rd December, 1981 was illegal, void and was the result of fraud and misrepresentation. The suit in substance was for the cancellation of the gift deed or alternatively for declaring the gift deed void. It was not a suit for mere declaration with consequential relief. An identical question came up before a Full Bench of this Court recently in Niranjan Kaur v. Nirbigan Kaur, 1981 PLJ 423. It was held that where the suit was virtually for cancellation of the sale deed executed by the plaintiff, the prayer for declaration that the sale deed was got executed as a result of fraud and the same was not binding on the plaintiff, does not convert the suit into one for declaration wish consequential relief of possession, so as to fall within Section 7(iv)(c) of the Court fees Act. In order to find out whether the proper Court fee had been fixed on the plaint, the learned trial Court had to look at the plaint and find out as to what was the real and substantial relief claimed in the suit and the Court fee had been fixed on that basis.

In view of this authoritative pronouncement, the contention of Mr. Ram Rang, the learned counsel for the petitioner, that the question regarding the valuation of the property could be decided only on evidence adduced by the parties, could not be accepted. He has relied upon a decision of a learned Single Judge of this Court in Hardwari Lal v. Pokhar Mal and others, 1978 PLR 252. In that case facts were different. The trial Court had concluded that the question of value of the property in the suit could be determined on the evidence about the market value of the shops, in dispute, and it had refused to treat the issue regarding the Courtfee as preliminary. A revision petition against that order had been dismissed by this Court. So this decision does not in any way help the petitioner. It has not been laid down that the matter of Courtfee has always to be decided on the basis of evidence adduced.

Similarly the reliance of Mr. Ram Rang on Ram Kali and another v. Sohan Lal, 1984 R.R.R. 211 : 1984 R.L.R. 538, is misplaced. In that case it had been held as to whether the decision in a previous suit was a res judicata or not could not be tried as a preliminary issue. In the very nature of things evidence was needed to connect the decision of the previous suit with the subject matter of the subsequent suit. In this context, it was observed that such an issue could not be treated as a preliminary issue.

For the foregoing reasons, I do not find any merit in the revision petitions (Nos. 408 and 409 of 1985) and the same are dismissed with no order as to costs.

Parties are directed through their counsel to appear before the learned trial Court on 13th June, 1985.