A party who is the executant of a sale deed and seeks its annulment along with possession and recovery of a specific sum must pay ad-valorem court fees; framing the suit as a mandatory injunction through clever drafting does not exempt them from this requirement.

ARCHANA PURI, J.

Challenge in the present revision petition is to the order dated 18.04.2019 passed by learned Civil Judge (Sr. Divn) in Civil Suit No.717 of 2016, titled ‘Bahadur Singh vs. Deepak Wadhawan and another’, whereby, a direction was given to affix the ad-valorem Court fee.

In pursuance of the notice issued by the Court, the respondents made appearance through counsel.

Counsel for the parties heard.

The essential facts, to be noticed, are as follows:-

That, initially, the petitioner-plaintiff filed a suit against defendant No.1-Deepak Wadhawan as Managing Director of M/s Shiva Built Tech and also arrayed M/s Shiva Build Tech through its Managing Director, Deepak Wadhawan, as defendant No.2. The suit was filed for possession by way of mandatory injunction, after revocation of Vasika No.6819 dated 08.03.2016, vis-a-vis, land measuring 11 bighas 15 biswas, as detailed in the headnote of the plaint, on the basis of the agreement to sell dated 15.12.2015. Besides the same, also mandatory injunction was sought for issuance of direction to the defendants to release the remaining sale consideration amount of Rs.1,68,79,833/-, as per the agreement to sell dated 15.12.2015.

At first instance, respondent-defendant No.1-Deepak Wadhawan had filed an application for issuance of direction to the petitioner (who is plaintiff before the trial Court) to affix ad valorem Court fee and on failure thereof, to reject the plaint. In the said application, Deepak Wadhawan- applicant had taken the stand that he does not admit his status qua the company i.e. M/s Shiva Build Tech. Also further, it was asserted that substantive relief, being that of possession, after setting aside the sale deed, to which the plaintiff himself is a party and for the recovery of the amount, the petitioner-plaintiff is required to pay ad valorem Court fee. However, the said application was dismissed.

Subsequently, M/s Shiva Build Tech had filed an application for directing the petitioner-plaintiff to affix ad valorem Court fee.

It is necessary to pin point that the petitioner-plaintiff himself had filed an application under Order 1 Rule 10 CPC, for joining Smt.Sudha Wadhawan and Smt.Renu Verma, both partners of M/s Shiva Build Tech, as per partnership deed dated 24.02.2016, as a party in the suit. The said application was allowed and Smt.Sudha Wadhawan and Smt.Renu Verma, were impleaded, being partners of Shiva Tech.

Such being the factual position, though the maintainability of the second application for the same purpose, as such, is questioned, but however, it cannot be said that the application, firstly filed at the instance of respondent-defendant No.1-Deepak Wadhawan, having been disposed of, debars respondent No.2 (who is defendant No.2 before the trial Court) to file an application for seeking issuance of direction to the petitioner-plaintiff to pay the ad valorem Court fee. However, Deepak Wadhawan, as such, had no concern with M/s Shiva Build Tech and the petitioner himself had got its partners i.e. Smt.Sudha Wadhawan and Smt.Renu Verma, impleaded, by filing an application under Order 1 Rule 10 CPC.

Proceeding further, it be noted that the suit for possession by way of mandatory injunction, as such, has been filed by the petitioner- plaintiff. It is only by virtue of clever drafting, the suit for mandatory injunction has been filed, though the petitioner is seeking possession after annulment of sale deed No.6819 dated 08.03.2016. Undisputedly, he is signatory to the said document.

Such being the factual position, beneficial reference is made to Suhrid Singh @ Sardool Singh vs. Randhir Singh , 2010(2) RCR (Civil) 564, wherein, the Hon’ble Supreme Court had observed, as herein given:-

“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 differen