- (1.) The present revision petition has been filed under Article 227 of the Constitution of India for setting aside order dated 4.11.2011, Annexure P4, passed by learned Civil Judge (Junior Division), Gurgaon, vide which the petitioner-plaintiff was directed to pay ad valorem Court fee on the relief of specific performance on an application filed by respondent No. 2-defendant under Order 7 Rule 11 of the Code of Civil Procedure (for short 'the Code') for rejecting the plaint. I have heard learned counsel for the petitioner and have gone through the whole record carefully including the impugned order passed by learned trial Court.
(2.) Briefly stated, petitioner-plaintiff filed this suit for a decree for mandatory injunction with consequential relief of permanent injunction directing respondent-defendant No. 2 to transfer the property, which is detailed in para No. 1 of the plaint in favour of petitioner-plaintiff and further restraining it from cancelling the allotment of respondent No. 1 and not to allot the same to some other person in collusion with each other. Plea has been taken that respondent-defendant No. 1 entered into an agreement to sell/transfer the property in dispute in favour of petitioner-plaintiff after the same was allotted to respondent-defendant No. 1 by respondent-defendant No. 2 and he had also received entire sale consideration from him and however, respondent-defendant No. 2 is not transferring allotment of the same in favour of petitioner-plaintiff after receiving transfer fee.
(3.) On notice being issued, respondent-defendant No. 2 filed application for rejection of plaint under Order 7 Rule 11 of the Code by taking the ground that the plaint does not disclose any cause of action. Plea was also taken that suit is not maintainable in the present form and that moreover appropriate court fee has also not been affixed. Learned trial Court vide impugned order did not accept plea of respondent-defendant No. 2 that the plaint is liable to be rejected as the same does not disclose any cause of action and, however, after perusing the plaint, learned trial Court came to the conclusion that in the garb of relief of mandatory injunction, in fact, petitioner-plaintiff is claiming relief of specific performance and hence, he is liable to pay ad valorem court fee for seeking relief of specific performance of agreement executed between him and respondent-defendant No. 1.;