Dr. Bharat Bhushan Parsoon, J. - (1.) INVOKING supervisory powers of this Court under Article 227 of the Constitution of India by way of this civil revision petition, order dated 1.9.2012 is sought to be set aside by the petitioner claiming herein that he is not liable to affix advalorem Court fee on the market value of the suit property as has been ordered by the lower Court vide the impugned order.
(2.) SMT . Kapuri Devi, mother of the petitioner Om Parkash, had filed a suit for declaration to the effect that she was owner in possession of land measuring 6 Kanals 10 Marlas (as explained by her in the plaint). She has sought further declaration that gift -deed of 27.8.2008 executed by her in favour of defendant No. 1 as also mutation No. 762 sanctioned on its basis were illegal, null and void and being result of fraud, were to be set aside. She had sought even further declaration to the effect that yet another gift -deed dated 29.3.2010 executed by defendant No. 1 in favour of defendants No. 2 and 3 regarding part of the land and mutation, if any, sanctioned on the basis of said gift -deed, were also illegal, null and void and were not legally binding on her. She had further sought consequential relief of permanent injunction against the defendants from further alienating the suit land as also against interference in actual physical possession of the plaintiff. Defendants No. 2 and 3 had preferred an application under Order VII Rule 11 CPC for rejection of the plaint claiming that since advalorem Court fee on the market value of the suit property had not been affixed by the plaintiff, the plaint was liable to be rejected. This application was contested by the plaintiff claiming that since gift -deed of 27.8.2008 executed by her had been obtained by playing fraud and misrepresentation, no advalorem Court fee was leviable. Vide impugned order, finding it to be a case of affixation of more Court fee, the lower Court had called the plaintiff to pay advalorem Court fee on the market value of the suit land. For compliance of this order, time was given to the plaintiff.
(3.) WHEREAS the petitioner claims that since possession continues to be with the plaintiff and only relief of declaration has been sought, it is not a case of affixation of advalorem Court fee. Contention of counsel for the contesting respondents on the other hand is that even if relief of possession has not been sought but since in the suit in addition to relief of declaration, even relief of consequential relief of cancellation of gift deeds has been sought thus advalorem Court fee is leviable.;