JUDGMENT

Arun Monga, J. (Oral)

Petition herein is for setting aside order dated 31.05.2014 (Annexure P-1) passed by learned Additional Civil Judge (Senior Division), Yamuna Nagar at Jagadhri whereby petitioner-plaintiffs were directed to ad valorem Court fee on the amount of Rs.47,95,862/- in a suit for declaration and permanent injunction with consequential relief of mandatory injunction.

2. Learned counsel for petitioner-plaintiffs would contend that plaintiff No.4/proforma respondent No.12 entered into an agreement with defendants No.1 to 3 to sell land @ Rs.12,55,000/- per acre. An amount of Rs.6,00,000/- was paid as earnest money at the time of agreement to sell. Petitioners paid total sale consideration of Rs.46,90,562/- and spent Rs.1,00,000/- on stamp and registration. He would further contend that upon discovery, petitioners found that mutation No.2487 was entered in the name of defendant No.7 on the basis of sale-deed dated 28.08.2009 regarding land measuring 15K-1M. He would contend that plaintiffs filed suit for declaration qua property in question against defendants-respondents along with consequential relief of mandatory injunction directing defendants No.1, 3 and 11 to pay actual sale consideration and expenses of sale-deed amounting to Rs.47,95,862/-.

2.1. Learned counsel for petitioner-plaintiffs would further contend that respondent-defendants filed an application under Order 7, Rule 11 of Code of Civil Procedure, 1908 (for short 'CPC')for affixing ad valorem Court fee, which was allowed vide impugned order dated 31.05.2014 (Annexure P-1) directing plaintiffs to affix ad valorem Court fee amounting to Rs.47,95,862/-.

2.2. Learned counsel for petitioners further submits that primary prayer of plaintiffs in the suit is for seeking declaration that they are owners in possession of the suit property and have challenged the sale deed/alienation and in the alternative, they have prayed for damages. Learned Trial Court, while deciding the application of defendants under Order VII Rule 11 of CPC, has ordered for payment of advalorem Court fee. He contends that learned Trial Court has erred in passing the impugned order because the Court fee cannot be asked to be paid on the alternative prayer, because in case the alternative prayer is granted by learned Trial Court, advalorem Court fee would be paid.

3. On the other hand, learned counsel for respondent-defendants No.1 to 3 and learned counsel for respondent No.11 oppose the revision and pray for dismissal of the same.

4. Having heard the arguments, I am of the view that revision petition deserves to be allowed primarily on the count that possession of the suit property being with plaintiffs (petitioners herein) is not disputed herein by defendants before Court below and main relief sought in the suit is for declaration of possession based on a sale-deed and permanent injunction and that there is only an alternative prayer of recovery of money, and at this stage, requisite Court fee to be affixed is only qua relief of declaration and injunction.

5. Concededly, suit is for declaration qua a subsequent sale-deed to which plaintiffs are not party and to that extent, alternative relief of money decree, if at all found to be admissible will necessarily depend on the findings to be rendered by learned trial Court qua declaration and injunction sought by plaintiffs. In case, learned trial Court comes to the conclusion that alternative relief is to be granted, then as a condition precedent, plaintiffs will have to be first given an opportunity to affix ad valorem Court fee at a subsequent stage. As regards relief of declaration, the same is governed by Section 7(iv)(c) of the Court Fee Act, 1870. Reference may be had to judgment rendered by th