The main legal point established in the judgment is the requirement of ad valorem court fee when seeking cancellation of an agreement to sell, and the distinction between substantive relief and consequential relief.

Ram Chand Gupta, J.

1. The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 16.4,2010, Annexure P1, passed by learned Civil Judge, Junior Division, Ludhiana.

2. I have heard learned counsel for the parties and have gone through the whole record carefully including the impugned order passed by learned trial Court.

3. Facts relevant for the decision of present revision petition are that a suit for decree for declaration to the effect that agreement to sell dated 7.6.2002 executed between the parties is illegal, null, void and not enforceable against the plaintiff with consequential relief of mandatory injunction directing the defendant to return the original agreement and treat the same as cancelled and further for restraining the defendant from dispossessing or otherwise interfering in any manner in the peaceful possession of the plaintiff over the property in dispute.

4. Suit was contested by respondent-defendant admitting execution of agreement to sell and by filing counter-claim for seeking relief of specific performance of the said agreement. An application under Order VII Rule 11 of the Code of Civil Procedure (for short the Code) was also filed by respondent-defendant for rejection of the plaint on the ground that the petitioner-plaintiff has sought declaration regarding agreement to sell, according to which value of property has been mentioned as Rs.20 lacs and however, he has not affixed ad valorem court fee, as per consideration of agreement to sell, which was decided by learned trial Court vide impugned order by observing that petitioner-plaintiff is liable to pay ad valorern court fee on the loan amount, mentioned in the agreement to sell dated 7.6.2002, which was received by him from respondent-defendant.

5. It has been contended by learned counsel for the petitioner plaintiff that petitioner-plaintiff has not sought possession of the property in dispute, as admittedly he is in possession of the same and, hence, it is contended that he is not required to pay ad valorem court fee.

6. On the other hand, it has been contended by learned counsel for the respondent-defendant that as petitioner-plaintiff is party to the agreement to sell, sought to be cancelled, hence, he is required to pay ad valorem court fee on the amount mentioned in the agreement.

7. Law has been laid down by Honble Apex Court in a recent judgment in case of Suhrid Singh @ Sardool Singh v. Randhir Singh and others,1(2010-2)158 P.L.R. 707 (S.C.) wherein it has been held that if plaintiff is executant of a deed which is to be annulled, he has to seek cancellation of the deed. The relevant paragraph of the judgment reads 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 ofC. 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 nonest/IIIegal and he is not bound by it. In essence both may be suing to have the 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 advalorem 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 Arti