Court Fees--Petitioner challenging sale deed executant by his attorney holder with plea of fraud--Ad valorem court fee payable

Amol Rattan Singh, J.

By this petition, the petitioner challenges the order dated 21.02.2018 (Annexure P-4), passed by the learned Civil Judge (Jr. Divn.), Hathin, by which her application under Order 7 Rule 11 of the CPC has been dismissed.

2. Vide the said application, the petitioner (defendant no.1 in the suit) had sought rejection of the plaint on the ground that despite the sale deed dated 09.11.2015 having been challenged, (it having been sought to be declared null and void and not binding on the respondent-plaintiff), court fee ad valorem had not been paid on the sale consideration shown in the said sale-deed.

3. The learned Civil Judge, after considering the matter held that since an allegation of fraud had been made by the plaintiff, to the effect that the instrument of general power of attorney on the basis of which the sale deed was executed by the attorney, was obtained by a fraud committed upon the plaintiff, court fee ad valorem was not required to be paid.

4. Learned counsel for the petitioner relies upon a judgment of the Supreme Court in Suhrid Singh @ Sardool Singh v. Randhir Singh and others, (2010) AIR SC 2807, from which he points to the fact that it has been specifically held therein that where the executant of a sale-deed seeks annulment thereof, such executant has to actually seek cancellation of the sale-deed, and in such a situation court fee ad valorem would be required to be paid, calculated on the amount of sale consideration shown to have been paid, in the sale deed. On the other hand, if a non-executant of a sale-deed seeks annulment thereof, she/he simply is required to file a suit seeking a declaration to that effect, on which a fixed court fee in terms of Article 17 (iii) of the 2nd Schedule to the Court Fee Act, 1870, needs to be paid, i.e. an amount of Rs.19.50 p.

5. Hence the contention is that the sale deed having been shown to be executed by the attorney of the plaintiff, the plaintiff has to be taken to be an executant thereof, despite the allegation that the power of attorney itself was an instrument that was obtained by a fraud played on her.

6. Learned counsel for the respondents on the other hand relies upon a judgment of a coordinate Bench of this Court in Teja Singh v. Smt. Amar Kaur and others, (2007) 57 RCR(Civ) 193, wherein it was held that since the plaintiff in that case had not claimed possession as a consequential or substantive relief in the suit, court fee did not have to be paid ad valorem. He thereafter draws attention to the prayer made in the suit, (a copy of the plaint being Annexure P-1), wherein the prayer is to the effect:-

"13. That the plaintiff, therefore, prays that a decree of declaration to the effect that the plaintiff is the owner of in possession of the property in dispute detailed in para no.1 of the plaint and the defendants have got no right, title or interest whatsoever in the suit property detailed in para no.1 of the plaint and the impugned sale deed dated 09.11.2015 bearing its vasika/document no.2868 in favour of the defendant no.1 qua the suit property detailed in para no.1 of the plaint and its subsequent mutation no.872 dated 04.12.2015 and the impugned General Power of Attorney dated 29.10.2015 bearing vasika/document no.31 in favour of defendant no.3/Jakir Hussain on behalf of the plaintiff are sham, bogus, illegal, null and void documents, ineffective and not binding upon the rights of the plaintiff qua the suit property detailed in para no.1 of the plaint and are liable to be set aside and a decree of permanent injunction restraining the defendant no.1 from alienating the suit property detailed in para no.1 of the plaint to a stranger and from creating any charge upon the said property illegally and unlawfully and restraining the defendants from dispossessing the plaintiff from the suit property illegally and by show of force, may kindly be passed in favour of the plaintiff and against the defendants with costs of the suit. And/or any oth