WPMS/1570/2013 of Saraswati Shiksha Samiti Jaspur Vs Ranjay Pratap AND OTHERS

IN THE HIGH COURT OF UTTARAKHAND AT NAINITALWrit Petition (M/S) No. 1570 of 2013

With

CLMA No. 6936 of 2013

Saraswati Shiksha Samiti Jaspur Tehsil Jaspur

…Petitioner.

Ranjay Pratap & others.

… Respondents

Hon’ble B.S. Verma, J. (Oral)

Mr. Jitendra Chaudhary, Advocate, present for the petitioner.

Ms. Lata Negi, Advocate, holding brief of Mr. Ajay Veer Pundir, Advocate for the respondent no.1.

Heard.

By means of this writ petition, the petitioner has sought writ in the nature of certiorati for quashing the orders dated 19.01.2012 and 29.09.2011 passed by learned District Judge Udham Singh Nagar in Civil Revision No. 50 of 2011 as well as passed by learned Civil Judge (S.D) Kashipur, in Civil Suit No. 02 of 2009 whereby the trial court decided issue no.5 in favour of the plaintiffs/respondents holding that suit was rightly valued and court fees of ` 200 was correctly paid.

Learned counsel for the petitioner has contended that both the courts below has failed to appreciate the fact that in the matter of suit for declaration of the sale deed as null and void, court fees shall be paid according to section 7 (iv-a) of the court fees act 1870.

In support of his contention learned counsel has placed reliance upon judgment of Supreme Court passed

in the case of Shailendra Bhardwaj and others vs. Chandra Pal and another (2013) 1 SCC 579 where in at para 8 it has been held as under:-

On comparing the abovementioned provisions, it is clear that Article 17 (iii) of Schedule II of the Court Fees Act is applicable in cases where the plaintiff seeks to obtain declaratory decree without any consequential relief and there is no other provision under the Act for payment of fee relating to relief claimed. Article 17 (iii) of Schedule II of the Court Fees Act makes it clear, that this article is applicable in cases where the plaintiff seeks to obtain declaratory decree without consequential reliefs and there is no other provision under the Act for payment of fee relating to relief claimed. If there is no other provision under the Court Fees Act in case of suit involving cancellation or adjudging/declaring void or voidable will or sale deed on the question of payment of court fees, then Article 17 (iii) Schedule II shall be applicable. But if such relief is covered by any other provisions of the Court Fees Act, then Article 17(iii) of Schedule II will not be applicable. On comparison between the Court Fees Act and the U.P. Amendment Act, it is clear that Section 7(iv-A) of the U.P. Amendment Act covers suit for or involving cancellation or adjudging/declaring null and void decree for money or an instrument securing money or other property having such value.

In view of the above dictum of the apex court, the court fee is payable as per section 7 (iv-A) of the U.P. Amendment Act.

Accordingly, in terms of section 7(iv-A) of the U.P.

Amendment Act the court fees have to be computed according to the valuation of subject matter.

Accordingly, the writ petition is allowed. Impugned orders dated 19.01.2012 and 29.09.2011 passed by learned District Judge Udham Singh Nagar, are set aside. The plaintiff is directed to take steps to amend the valuation clause and paid court fee as directed above.

04.12.2013NP

(B.S. Verma, J.)