The proper court fees for a suit involving cancellation of a sale deed should be payable according to the market value of the property under Section 7 (iv-A) of the Act.

( 1 ) THIS is a First appeal From Order under Section 6-A of the courts-fees Act read with Section 104, C. P. C. against the order of the Additional Civil judge (Senior Division), Court No. 13, allahabad dated 4-8-2005 passed in Original suit No. 674 of 2004 Ajay Tiwari v. Hriday Ram Tiwari and others. The Court below by the said order has decided Issue no. 2 with regard to valuation and payment of Court-fees and has held that the suit has rightly been valued at Rs. 10. 0 lacs but the plaintiff/appellant has not paid proper court-fees.

( 2 ) THE plaintiff/appellant Ajay Tiwari filed Original Suit No. 674 of 2004 Ajay tiwari v. Hriday Ram Tiwari and others in the Court of Additional Civil Judge (Senior division), Allahabad for declaring the sale deed dated 26-6-2004 registered on 5-7-2004 in respect of House No. 18/25, mundera Bazar, Allahabad and executed by hriday Ram Tiwari defendant No. 1 in favour of Ramesh Kumar Kushwaha and others, defendant Nos. 2 to 5 to be declared as null and void. No consequential relief thereof has been claimed. The plaintiff/appellant valued the suit as per the market value of the property on Rs. 10. 0 lacs and paid Court-fees of rs. 200/- only. The defendants/respondents contended that the suit is essentially for the cancellation of the sale deed, and, therefore, the Court-fees of Rs. 200/- is inadequate and thus the suit cannot proceed unless proper Court-fees is paid. Accordingly, Issue No. 2 was framed with regard to the valuation of the suit and the amount of court-fees payable. The said issue has been decided by the impugned order and, therefore, the appeal.

( 3 ) THE appeal was presented with some delay and the delay in filing the same was condoned vide Courts order dated 3-3-2006. Now the appeal has come up for admission/ final disposal. Since all the parties are duly represented and the counsel have agreed for the disposal of the appeal at the admission stage, the same is being decided finally.

( 4 ) WE have heard Shri Anil Kumar sharma learned counsel for the plaintiff/ appellant, Shri P. K. Goswami and Shri Hari mohan Srivastava on behalf of the defendants/respondents and the Standing Counsel on behalf of the State of U. P.

( 5 ) LEARNED counsel for the plaintiff/appellant contends that the suit has been instituted simply for declaring the sale deed as null and void with no consequential relief. Therefore, he is liable to pay Court-fees in accordance with Article 17 (iii) of Schedule II of the Court-fees Act, 1870. He has already paid Court-fees of Rs. 200/- which is more than the amount prescribed under the above Article to the Schedule II. In support of his argument he has relied upon AIR 1968 All 216 Smt. Bibbi v. Shugan Chand, air 1971 Supreme Court 87 and 1992 allahabad Law Reports 831 : (1992 All LJ 728) Smt. Safali Roy v. Hero Jaswant Das.

( 6 ) ON the other hand the counsel for the defendant/respondents contended that Article 17 (iii) of Schedule II is not applicable in the present case inasmuch as Section 7 (iv) (a) read with (iv-A) of the Act as applicable to U. P. specifically provides for the payment of ad-valorem Court fees according to the market value of the subject matter of the instrument.

( 7 ) FOR the sake of convenience Article 17 (iii) of Schedule II of the Act and Section 7 of the Act are reproduced below :

"17. Plaint or memorandum of appeal in each of the following suits : (i ). . . . . . . . . . . . . . . . (ii ). . . . . . . . . . . . . . . (iii) to obtain a declaratory decree where no consequential relief is prayed in any suit, not otherwise Rs. 30/-provided by this Act. "7. Computation of fees payable in certain suits for money. The amount of fee payable under this Act in the suits next hereinafter mentioned shall be computed as follows : for a declaratory decree with consequential relief. . . . . (iv) In suits. . . . . . . . . . . (a) to obtain a declaratory decree or order, where consequential relief other than reliefs specified in sub-sect