SITA RAM PATHAK Vs. GOPAL PATHAK AND OTHERS

JUDGEMENT

(1.) Petitioner has filed this petition being aggrieved by the order dated 10/09/2014 passed by the Court of 3rd Additional Civil Judge Class-II, Gwalior whereby an application filed by the defendant under the provisions of Order 7, Rule 11 of Civil Procedure Code has been entertained upholding the objection that ad valorem Court fees is payable under the provision of Sec. 7(iv)(C) of the Court fees Act instead of fixed Court fees as has been paid by the plaintiff/petitioner. It is petitioner's submission that the test for determining whether the Ad valorem Court Fees was payable or Fixed Court fees is payable is that whether the relief of injunction is independent from the relief of declaration or it is derived from the relief of declaration as has been sought by the petitioner. Learned counsel for the petitioner has placed reliance on the judgment of this Court in case of Varud Ahmed Vs. Nihal Ahmed as reported in 1996 (1) MPWN 235 wherein the facts of the case were that plaintiff had filed a suit for declaration that they were in possession of the suit property. They also sought permanent injunction to restrain the respondent/defendant No.1 from selling property to defendant No.2 or any other person or to interfere in the possession of the suit property. Under such facts and circumstances, learned Court was pleased to hold that the two reliefs as were sought by the plaintiff were independent of each other and therefore ad valorem Court-fees was not payable but a Fixed Court Fees was payable under the Provisions of Sec. 7(iv)(d) of the Court Fees Act. Reliance has been placed in this decision on the judgment of Supreme Court in the case of Shamsher Singh Vs. Rainder Prasad and Ors. as reported in AIR 1973 SC 2384.

(2.) Relying on this judgment, learned counsel for the petitioner submits that perusal of the relief sought by him will show that the suit will not fall within the provision of Sec. 7(iv)(c) of the Court Fees Act but will be governed by the Provisions of Sec. 7(iv)(d) and Fix Court Fees will be payable.

(3.) Before adverting to the merits of the case, it is necessary to reproduce the provisions as are contained in Sec. 7(iv)(c) and 7