Court Fee--Agreement to Sell--Court Fee had to be affixed on total consideration as set in agreement and not on amount given.

Mrs. Daya Chaudhary, J.:- The petitioners have approached this Court by way of filing the present revision petition under Article 227 of the Constitution of India for setting aside impugned order dated 25.04.2017 (Annexure P-1) passed by the Civil Judge (Junior Division), Ludhiana, whereby, the application filed by the defendant-respondent under Order 7 Rule 11 CPC for dismissal of suit on the ground of under valuation of the suit property has been allowed.

2. Briefly, the facts of the case as made out in the present revision petition are that the petitioners-plaintiffs filed a suit for seeking possession by way of specific performance on the basis of agreement to sell dated 27.09.2013. The petitioners have already paid an amount of Rs.3,50,000/- as earnest money to the respondent-defendant, namely, Surjit Singh against total sale consideration of Rs.20,50,000/-. An application under Order 7 Rule 11 CPC was filed by the defendant-respondent for rejection of the plaint on the ground that the ad valorem court fee has been paid only on the amount of earnest money and the plaint is liable to be rejected. Said application was disposed of vide order dated 25.04.2017 with a direction to petitionersplaintiffs to make good the deficient court fees before the next date of hearing i.e., 11.05.2017.

3. Learned counsel for the petitioners submits that the claim in the suit is for permanent injunction and accordingly, the fee was affixed. Learned counsel further submits that after valuation of the property in dispute, the court fee has been affixed and while passing the impugned order, the petitioners-plaintiffs have been asked to affix the ad valorem court fee on the total amount of consideration. Learned counsel for the petitioners has also relied upon judgment rendered by this Court in Agroha Vikas Trust, Agroha vs. Ram Bilas and others, CR No.6091 of 2008 decided on 03.11.2009. The relevant portion reads as under:-

“Taking into consideration the totality of the circumstances, it is felt that ends of justice will be adequately met in case the plaintiff- respondent No.1 is permitted to proceed with the case. It is further observed that in case any objection regarding the court fee is raised, the same would be decided, in accordance with law, after framing a necessary issue in this regard. In case, ultimately, it is held that the ad valorem court fee is required to be affixed, it will be open to the trial court to issue a direction to the plaintiff to make good the deficiency of court fee, in accordance with law by deciding the issue of court fee. Similarly, the plea of limitation will also be adjudicated upon by the trial court on the basis of facts and law. The trial court seems to have rightly not shut the doors of the court for adjudication of the questions, raised by the defendant- petitioner by dismissing the application under Order 7 Rule 11 CPC.”

4. Heard arguments of learned counsel for the petitioners and have also perused impugned order dated 25.04.2017.

5. Admittedly, the petitioners filed suit for possession by way of specific performance on the basis of agreement to sell dated 27.09.2013. An amount of Rs.3,50,000/- was paid as earnest money to the defendantrespondent, namely, Surjit Singh against total sale consideration of Rs.20,50,000/-. The application filed by the defendant-respondent has been disposed of with a direction to the petitioners-plaintiffs to make good the deficient court fees before the next date of hearing i.e., 11.05.2017.

6. Now the question for consideration before this Court is as to whether the ad valorem court fee is to be affixed on total amount of consideration or the earnest money.

7. When a plaint is presented ordinarily it should be accompanied with the requisite court fees payable thereupon. Section 4 of the Court Fees’ Act, 1870 mandates the same in the following terms:-

“4. Fees on documents filed, etc., in High Courts in their extraordinary jurisdiction:- No document of any of the kinds specif