An executant of a deed seeking its cancellation must pay ad valorem court fee based on the consideration amount stated in the instrument. The power of judicial superintendence is limited and should not be exercised to interfere with subordinate court orders unless necessary to maintain judicial discipline.

JUDGMENT :

VIKAS BAHL, J. (ORAL)

1. This is a civil revision petition under Article 227 of the Constitution of India for setting aside the impugned order dated 02.04.2019 whereby the application under Order VII Rule 11 CPC filed by the respondents has been allowed.

2. The plaintiff has filed the present revision petition challenging the order dated 02.04.2019 vide which the plaintiff has been directed to pay ad valorem Court fee on the mortgage amount. A perusal of the impugned order would show that it has been noticed by the trial Court that a mortgage deed No.3670 dated 08.08.2014 was registered at the office of Sub Registrar, Bahadurgarh and the plaintiff had mortgaged the suit land as detailed in para 1 of the plaint to the defendants for mortgage amount of Rs. 20,75,000/- and thereafter had filed a suit for declaration and permanent injunction to get the said registered mortgage deed set aside and cancelled. It was further observed that since the plaintiff had not affixed the Court fee, thus, an application was filed by the respondents-defendants for rejection of the plaint under Order VII Rule 11 CPC. After hearing the arguments of the parties concerned, the trial Court observed that the said mortgage deed was a registered document and was executed by plaintiff-Kiran in favour of defendants Parmod and Dharmender in lieu of the mortgage amount of Rs.20,75000/- and a challenge was made to the said mortgage deed and since the plaintiff was a party to the said mortgage deed, the plaintiff was liable to pay Court fee on the mortgage amount i.e. on the amount of Rs. 20,75,000/-. In support of the said observations, reliance was placed upon the judgment of the Hon’ble Supreme Court in the case of Suhrid Singh @ Sardool Singh Versus Randhir Singh , 2010 (12) SCC 112. Accordingly, the application was allowed and the plaintiff was directed to pay ad valorem Court fee on the mortgage amount.

3. The Hon’ble Supreme Court in the abovesaid case has held 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 of 'C'. 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 non- est/ illegal 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 ad-valorem 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 Article 17(iii) of Second Schedule of the Act. But if 'B', a non-executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under Section 7(iv)(c) of the Act. Section 7(iv)(c) provides that in suits for a declaratory decree