IMPORTANT POINT
Court fees are mandatory for suits involving declarations of void instruments, and the issue of court fees must be resolved before addressing other issues.

JUDGMENT :

(Neeraj Tiwari, J.)

1. Heard Sri Shantanu along with Sri Raj Kumar Dhama, learned counsel for revisionist and Sri Punit Kumar Gupta, learned counsel for opposite party.

2. Present civil revision has been filed seeking following relief:-

“It is, therefore, Most Respectfully prayed that this Hon’ble Court may graciously be pleased to stay the effect and operation of the impugned Judgment and Order dated 12.03.2024 passed by the Learned Additional Civil Judge (Senior Division) Court No. 9, Meerut in Original Suit No. 1100 of 2023 (Smt. Meetu vs. Kushank Paruthi) allowing the Application No. 46 Ga filed by the defendant/respondent under Order 7 Rule 11 of C.P.C.; during the pendency of the present revision before this Hon’ble Court, otherwise the revisionist shall suffer irreparable loss and injury.”

3. At the very outset, Sri Punit Kumar Gupta, learned counsel for opposite party has raised preliminary objection and submitted that against the impugned order, there is remedy to file appeal under the provisions of The Court-fees Act, 1870 (hereinafter referred to as ‘ Act, 1870’).

4. Sri Shantanu, learned counsel for revisionist has objected the submission made by learned counsel for opposite party and submitted that present revision has been filed against the order passed upon the application filed under Order VII Rule 11 of CPC, therefore, there is no occasion for the revisionist to file appeal and revision is the remedy provided under the law.

5. On merits, he submitted that Original Suit No. 1100 of 2023 has been filed before learned Civil Judge (Senior Division), Meerut under sections 34 & 38 of Specific Relief Act, 1963 to declare void alleged fraudulent Will deed dated 26.03.2021 registered on 20.02.2023 executed by Late Naresh Kumar Paruthi husband of revisionist Smt. Neetu Paruthi. Further, for seeking declaratory decree and permanent injunction in half share of the revisionist in the property belonging to Late Sri Naresh Kumar Partuthi after his death. After filing of suit, application under Order VII Rule 11 of CPC has been filed by defendant, which was partly allowed with direction to plaintiff to deposit court fee.

6. He next submitted that so far as deficiency of stamp fee is concerned, it may not be decided upon the application under Order VII Rule 11 of CPC rather issue is required to be framed after submission of written submissions and should have been decided along with other issues so framed.

7. He firmly submitted that as present suit has been filed to declare the Will deed void and not for cancellation of the same, therefore, no court fee is required and only court fees of Rs. 200/- as paid by the plaintiff is sufficient. He next submitted that similar issue was before the Division Bench judgment of this Court in the matter of Pramila Tiwari vs. Anil Kumar Mishra and 4 others; Neutral Citation.-2024:AHC:85067-DB as to whether provisions of compulsory registration of Will is prospective or retrospective and the Court has held that registration of Will is not required in State of Uttar Pradesh. Based upon said judgment, learned counsel for revisionist submitted that once the registration of Will is not necessary, it shall not required to be cancelled and only declaration of void is sufficient.

8. He further submitted that while deciding the application under Order VII Rule 11 of CPC, only plaint is required to be seen and no defence may be considered by the Court. Here in present case, Court has considered the defence so raised by defendant in application under Order VII Rule 11 of CPC, therefore, order is bad and liable to be set aside.

9. Per contra, Sri Punit Kumar Gupta, learned counsel for opposite party firmly submitted that after filing of suit, once the issue of court fees is raised, it is required to be decided first and then Court may proceed to decide the remaining issues, so framed. In support of his contention, he has placed reliance upon the judgment of this Court in the matter of State of Uttar Pr