MOHAMMAD RAFIQ,J. - (1.) This revision petition has been filed by the defendant-petitioner against order dated 25.02.2015 passed by Additional Civil Judge & Additional Chief Judicial Magistrate No. 2, Jaipur District, Jaipur (for short 'the trial court') whereby Issue No. 3 has been decided against the petitioner.
(2.) Factual matrix of the case is that the plaintiff-respondent executed a sale deed in favour of the defendant-petitioner with regard to land in dispute for sale consideration of Rs. 91 lacs. Sum of Rs. 61 lacs was paid in cash whereas amount of Rs. 30 lacs was paid by cheque, but the cheque was dishonoured. The plaintiffs-respondents filed a suit for declaration and perpetual injunction before the trial court on 15.07.2008 with the prayer that aforesaid sale deed dated 03.11.2007 be declared void and consequently, mutation attested in favour of the defendant-petitioner on that basis be also declared void. The plaintiff-respondent also prayed for relief of perpetual injunction against the petitioner. The defendant-petitioner filed written statement to the plaint and raised various objections. One of them was regarding insufficient court fees. The trial court framed as many as six issues vide order dated 14.05.2010. Issue No. 3 was framed with regard to court fees and burden of that issue was placed on the petitioner-defendant. On application of the defendant-petitioner, Issue No. 3 was ordered to be decided as preliminary issue. Thereafter, the trial court vide impugned order dated 25.02.2015 has decided Issue No. 3 against the defendant-petitioner.
(3.) Mr. R.K. Daga, learned counsel for the petitioner submitted that the plaintiff-respondent by cleverly wording the prayer clause in the plaint has sought relief that sale deed executed by him in favour of the defendant-petitioner on 03.11.2007 be declared void and mutation on that basis be also declared void. By doing so, the plaintiff-respondent, on the basis of prayer clause of the plaint, has paid court fee of Rs. 20/- whereas as per Section 38 of the Rajasthan Court Fees & Suits Valuation Act, 1961 (for short 'the Act'), in a suit for cancellation of a decree for money or other property having a money value or other document, which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fees shall be computed on value of the subject-matter of the suit and such value shall be deemed to be, if the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed. Therefore, the court fees was required to be paid on the market value of the property. The trial court illegally held that Court fee has been paid as per Section 24 of the Act. None of the provisions contained in Clauses (a), (b), (c) and (d) of Section 24 of the Act is applicable to the present case. Learned counsel cited judgment of this Court in LR of Surjaram v. LR of Asharam and others, 2008(2) DNJ (Raj.) 818 and argued that in that case it was held that suit of this nature would fall within the scope of Section 38 of the Act and the plaintiff therein was required to deposit remaining court fees on the market value of the property and not court fees on half of the market value. Learned counsel also cited judgments of this Court in Vijay Parasar v. Sanwar Mal Jat and others, 2012(3) DNJ (Raj.) 1288 and argued that if the plaintiff has himself executed sale deed and he has sought such declaration regarding alleged sale deed, he is required to pay court fee on the considerations stated in the sale deed. Reliance in this connection has also been placed on the judgment of the Supreme Court in Sudhir Singh v. Randhir Singh and others, 2010(12) SCC 112. It is argued that Court, where the suit has been filed, does not have pecuniary jurisdiction to entertain the suit because total sale consideration was Rs. 91 lacs and therefore, court fees should have been paid on that amount. The trial court does not have jurisdiction to entertain such suit. Learned counsel for the petitioner referred to explanation below Section 115 CPC and argued that the expression "any case which has been decided" includes any order made, or any order deciding an issue in the course of a suit or other proceedings. Learned counsel for the petitioner has relied upon the decisions in N.R. Govindarajan v. V.K. Rajagopalan and others, 2005(12) SCC 362; Kanhaiyalal v. Himmat Bahadur, 1961 RLW page 237; Vishwanath Vasudeo and another v. Sakal Aiya Panch and another, AIR 1953 M.B. 40; Zainabey Razak v. Noor Mohammed Rothan, AIR 1961 Kerala 146 Full Bench; Industrial Co-operative Bank Ltd. v. Bhubaneswar Barthakur and others, AIR 1983 Gauhati 71; Palaniswami v. Subbaraya Gounder, AIR 1975 Madras 398; Suhrid Singh alias Sardool Singh v. Randhir Singh and others, 2010(1) WLC (SC) Civil 619 : 2010(12) SCC 112; Sukh Lal and others v. Devi Lal and others, AIR 1954 Rajasthan 170 and Mst. Munavirunnisa Begum and ors. v. Mohd. Islam and others, 2015(3) WLC (Raj.) 1.;