JUDGMENT :

1. The present revision petition has been filed against the order dated 16.01.2023 passed by the Additional Civil Judge No.1, Jodhpur Metropolitan in Civil Suit No.172/22 (NCV No.657/22) (wrongly mentioned in the order impugned as Civil Misc. Case No.172/22) whereby the application under Order 7 Rule 11 read with Section 151, CPC as filed by the defendant Nos.1 & 2 has been rejected.

2. The facts of the case are that a suit was preferred by minor Arman Chauhan through his next friend for declaration of the sale deed to be void and for permanent injunction. In the said suit, an application under Order VII Rule 11, CPC was preferred by the defendant nos.1 and 2 on three grounds, firstly, in terms of Section 24(a) of the Rajasthan Court Fees and Suit Valuation Act, 1961 (hereinafter referred as ‘the Act of 1961’), the court fee is to be paid on basis of the market price of the disputed property which has not been paid in the present suit. Further, the suit has not even been valued on the current market price. Although, the sale deed in question itself specifies the valuation of the property to be Rs.23,10,000/-in the year 2019, the present market value has not been specified in the plaint. Secondly, even if the valuation as specified in the sale deed in question is taken into consideration, the present suit would not be within the pecuniary jurisdiction of this Court. Thirdly, the plaintiff being a minor is not entitled to appoint any power of attorney on his behalf and Ahmad Hussain is neither the natural guardian of the minor nor he has been appointed as a next friend to sue on behalf of the minor. On the above grounds, it was prayed that the plaint be rejected.

3. In response, the case of the defendant was that sufficient Court fee had been paid as the suit in question was for cancellation of the sale deed and as held by the Hon’ble Apex Court in the case of Suhrid Singh @ Sardool Singh vs. Randhir Singh & Ors., AIR 2010 SC 2807, where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed and the Court fee payable in the present matter would be liable to be computed in terms of Section 24 (e) of the Act of 1961 only.

4. As the plaintiff had not prayed for relief of possession in the present matter, the Court below, relying upon the judgment passed in the case of Jagidh Sahu & Ors. vs. Sonu & Ors. in S.B. Civil Writ Petition No.8973/2014 (decided on 31.01.2017) held that the present case would fall under clause (e) of Section 24 of the Act and hence, the court fee payable would be on the valuation computed in the plaint qua the reliefs sought. Hence, the Court below held that the Court fee as paid was sufficient and consequently rejected the application as filed by the defendants.

5. Learned counsel for the petitioners submitted that the Court below wrongly held the suit to be governed by Section 24 (e) of the Act of 1961. Admittedly, the present suit was for declaration and the plaintiff sought declaration as well as the consequential relief of permanent injunction. Therefore, it would be governed by clause (b) of Section 24 of the Act of 1961 and not clause (e) of Section 24 of the Act of 1961. Therefore, court fee was liable to be paid on the market price of the property in question.

6. Per contra, learned counsel for the respondents submitted that the complete tenor of the suit was for relief of cancellation may be the relief qua the same is not happily worded. Counsel submitted that the suit was specifically for cancellation and not for declaration and further, the plaintiff was definitely an executant of the document in question, he being a minor and the document being executed by his mother being his natural guardian. He therefore submitted that even if it is assumed that the present matter would not be governed by Section 24 (e) of the Act of 1961, it would then also not be governed by Section 24 (b) of the Act of 1961 but would be governed by Section 38 of the Act of 1961.

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