VIJAY LAXMI SHARMA Vs. DEEPAK KUMAR TYAGI
LAWS(UTN)-2013-10-3
HIGH COURT OF UTTARAKHAND
Decided on October 03,2013

VIJAY LAXMI SHARMA Appellant
VERSUS
Deepak Kumar Tyagi Respondents

JUDGEMENT

B.S.VERMA, J. - (1.) THIS appeal is directed against the judgment and orders dated 19.11.2011, passed by Civil Judge (S.D.), Haridwar in O.S. No. 177 of 2001, Smt. Vijay Laxmi Vs. Deepak Kumar and others, wherein issue no.2, in respect of deficiency in payment of court fee, has been decided in favour of the respondents/defendants and direction was issued to the plaintiff to pay ad valorem court fee to amend the plaint, accordingly, on which, Munsarim shall give his report.
(2.) BRIEFLY stated, the facts of the case giving rise to this appeal are that the appellant filed O.S. No. 177 of 2001 against the respondents for declaration that the alleged decree, passed in Original Suit No. 126 of 1990, dated 09.01.1991, Deepak Kumar vs. Smt. Vijay Laxmi and others, be declared null and void. The learned counsel appearing on behalf of the appellant has vehemently argued that the plaintiff has sought relief & that to declare the decree passed in O.S. No. 126 of 1990 as null and void and no other relief has been sought. The learned trial court on the premises that plaintiff is claiming her right to receive the rent as co -sharer and in possession of disputed property from the defendant who are tenants. Therefore, she is indirectly claiming rights in the disputed property as pleaded in the plaint directed to pass the ad valomrem court fee in the suit. Since, the relief of declaration has been sought and no consequential relief has been sought. Therefore, court fee payable will be, which has been paid in the earlier Suit No. 126 of 1990. In support of his contentions, the learned counsel has placed reliance upon the judgment of the Division Bench of Hon'ble Allahabad High Court in the case of Smt. Shefali Roy vs. Hero Jasant Dass and others (H.C), A.L.R., 831, wherein Article 17 Schedule II of the Court Fees Act has been discussed and it has been held that: "21. In the instant case no relief is claimed in terms of the above referred provision by the plaintiff, but simply a declaration is sought that the alleged sale deed be declared null and void. 22. The payment of court fee depends upon the averments of the plaint and the relief claimed and not on the averments of the written statement. A suit for mere declaration that the plaintiff is owner of the property in suit as claimed by the plaintiff in the instant case and incidentally claiming a declaration that the alleged sale deed be declared null and void, does not fall within the ambit of Section 7 (iv -a) (State of U.P. Amendment). See State of U.P. v. Romkrishan Burman,3 wherein considering this State of U.P. Amendemnt. Their Lordships of the Apex Court ruled that in a suit for mere declaration that the plaintiff is owner of certain properties, this U.P. Amendment is not attracted for the purposes of payment of Court fee. According to Their Lordships this U.P. Amendment relates to a decree for recovery of money or other property. It however does not include a decree concerning title to money or other property, and hence where mere declaration is involved, the payment of court fee is governed under Article 17 Schedule II of the Court Fees Act. In view of the decision in Ramkrishan Burman's case (supra), we are of the opinion that the plaintiff has paid proper court fee."
(3.) THEREFORE , in view of the ratio of the above judgment and in view of the fact that only a mere declaration was sought to declare the decree null and void and no other relief has been sought by the plaintiff, therefore, the court fee payable would be, as has been paid in the earlier suit i.e. Suit No. 126 of 1990. The order, passed by Civil Judge (S.D.) on issue no.2, directing the plaintiff to pay ad valorem court fee, is perverse. The issue is decided in favour of plaintiff/appellant. The appeal is allowed and the impugned order is set aside.;


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