JUDGMENT AND ORDER :

PANKAJ BHANDARI, J.

1. Petitioner has preferred this writ petition aggrieved by order dated 16.08.2016 vide which the court below while deciding the application filed by the defendant under Order 7, Rule 11 CPC, directed the plaintiff to pay the deficit court fees.

2. It is contended by counsel for the petitioner that while deciding the court fees payable, the plaint as a whole has to be read by the court. The plaint in this particular case was for declaration and injunction with a relief for cancellation of sale deed.

3. It is contended by counsel for the petitioner that since the plaintiff is in a possession, therefore, the court fees as filed by the plaintiff was sufficient and there was no reason for directing the plaintiff to pay deficit court fees in accordance with Section 38 of the court fees and Suit Valuation Act 1961 (hereinafter referred to as the 'Act').

4. Counsel for the petitioner has further drawn my attention to Section 24 of the Act. More particularly clause (b) which reads as under :- Where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property, subject to a minimum fee of twenty rupees.

5. It is contended by counsel for the petitioner that in accordance with Section 24 of the Act, court fee has been paid by the petitioner. It is further contended that the petitioner was not a party to the sale deed which he seeks to get cancelled, and therefore, the court below has erred in directing the plaintiff-petitioner to pay court fee on the valuation of the property.

6. Counsel for the petitioner has placed reliance on Sukh Lal & Ors. v. Devi Lal & Ors. AIR 1954 Rajasthan 170 (Vol. 41, C.N. 52 (1), wherein the Court observed as under :-

Now, we have no doubt that in order to determine the proper court-fee payable on a plaint in a particular case, the true principle is that the plaint as a whole should be looked at and that it is the substance of the plaint and not its ostensible form which really matters. It is true further that caution must be observed so that nothing is imported into the plaint, which it really does not contain either actually or by necessary implication. It is also well established that in construing the plaint, the court must take the plaint as it is and not as it ought to have been (Vide - 'Kalu Ram v. Babu Lal' AIR 1932 All 485 (FB) (A) and 'Mt. Rupia v. Bhatu Mahton', AIR 1944 Pat 17 (FB) (B).

There is a difference between a suit for the cancellation and one for a declaration that the instrument is not binding on the plaintiff. When the plaintiff seeks to establish a title in himself and cannot establish that title without removing an insuperable obstacle such as a decree or a deed to which he has been a party or by which he is otherwise bound then quite clearly he must get that decree or deed cancelled or declared void in to and his suit is in substance a suit for the cancellation of the decree for deed notwithstanding the fact that the suit may have been, framed as a suit for a declaration. On the other hand, when the plaintiff is seeking to establish a title and finds himself threatened by a decree or a transaction between third parties, he is not in a position to get that decree or deed cancelled in to. The proper remedy in such a case is to get a declaration that the decree or deed is invalid so far as he himself is concerned, and, therefore, he may sue for a declaration to that effect and not for the cancellation of the decree or the deed. See- 'Vellayya Konar v. Ramaswami Konar', AIR 1939 Mad 894 (C).

7. Counsel for the petitioner has also placed reliance on Makhan Lal and another v. Urban Improvement Trust, Jaipur City and another, AIR 1978 Rajasthan 123, wherein the Court in a suit for declaring a sale deed as void and ineffective and for delivery of possession valued the suit at market value of property and held that ad valore

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