The main legal point established in the judgment is the interpretation and application of the provisions of the Court Fee Act, specifically Section 7(iv)(c) and Article 13 of the Second Schedule, in determining the appropriate court fee payable for the relief sought by the plaintiff.

Sanjay Karol, J.-The plaintiff, who is the appellant herein, is aggrieved by order dated 26.9.2008 passed by Additional District Judge (Fast Track Court), Shimla, dismissing his application filed under Order 47 Rule 1, CPC seeking review of order dated 17.9.2008 directing the plaintiff to make good the deficiency in the court-fee, in terms of its earlier order dated 24.10.1995.

2. The plaintiff filed a suit for declaration to the effect that the provisions of Section 16 of the H.P. Town and Country Planning Act, 1977, are not applicable to the area of Village Badhai, Tehsil and District Shimla, H.P. and that no permission is required for raising any construction in the said area and further for a permanent prohibitory injunction restraining the defendant from taking any action against the construction raised in the said village under the provisions of the aforesaid Act.

3. The plaintiff is owner in possession of 1/16th share in land measuring 3 Biswas, out of the total land measuring 2 Bighas 15 Biswas, comprised in Khasra No.1308/503, Khata Khatauni No.73/107, situate in Village Badhai, Tehsil and District Shimla, H.P. He raised construction thereupon without taking statutory permission, presumably on the ground that it was not required. However, the statutory authority issued a show cause notice dated 3.7.1995, asking the plaintiff to restore the land to its original condition existing before the development and demolish the building.

4. Apprehending threat of demolition, plaintiff filed the suit pleading that the provisions of the Act were not applicable to the area in question, hence the defendants’ action is illegal. Initially, the suit was filed before this Court. Order dated 19.10.2001 directing the parties to maintain status quo was confirmed by this Court on 14.3.1996. Subsequently, by virtue of the provisions of the H.P. Courts (Amendment) Act, 2001 the suit stood transferred to the Court of District Judge, Shimla.

5. The Court below found that the plaintiff had affixed insufficient court fee and hence vide order dated 24.10.2005, directed the plaintiff to take steps in terms of the following order:-

“Time prayed for consideration. Allowed. It appears that suit has been valued for Rs.5.50 lacs and a court fee of Rs.130/- has been affixed which is insufficient. Plaintiff to take steps. Be listed on 7.11.2005.”

6. Record reveals that on 7.11.2005 the plaintiff moved an application under Order 23 Rule 1, CPC, which stood decided in terms of order dated 21.2.2006, which is reproduced as under:-

“Heard. Plaintiff has moved an application under order 23 rule 1 C.P.C. for withdrawing relief of injunction claimed in the suit on the ground that relief of permanent prohibitory injunction is not required by the plaintiff and only the declaration is sufficient. The application is supported by an affidavit. On the other hand State/respondent has filed reply claiming that plaintiff cannot withdraw the relief of injunction and suit will become infructuous. Plaintiff is the dominus litus and defendant cannot dictate terms to him. A plaintiff can withdraw any relief or plea and the permission of the court is not required. Permission of the court would be required where plaintiff withdraws a suit and seeks leave of the court to institute the same on the same cause of action. There is no such prayer in the application. No doubt where relief of declaration is sought qua any immovable property and injunction is also sought, court fee is payable at market value of the property. Suit was assessed for the purposes of jurisdiction at Rs.5.50 lacs, so also for the purposes of declaration. Since the property was assessed at Rs.5.50 lacs, the court fee for declaration and injunction was payable on this amount. Rs.13 has been fixed under the H.P. Court Fee Act as a minimum fee but there is no upper limit about the maximum fee payable. Court is within its jurisdiction to require the plaintiff to correct the court fee and pay the same. It