1982 PLP 9 (CLC)

Dates of hearing: 18th October and 2nd November, 1980. On 25‑9‑1975 the petitioner filed a suit for a declaration that he was the owner of land measuring 156 kanals, 9 marlas, situate in Mauza Moolapur, Tehsil Kabbir Wala, District Multan and that the Sale Deed No. 742 dated 15‑11‑1972 vide Mutation No. 646 dated 21‑9‑1972 was void and of no legal effect. The suit was contested and Issue No. 3 relating to the court‑fee was to the following effect:‑ No.

3. Whether the valuation of the suit for the purposes of court‑fee and jurisdiction have been correctly fixed, if not what is the correct valuation?

2. The case of the petitioner in the plaint was that his signatures and thumb impression on the sale deed were as a result of fraud and over confidence deposed on respondent No. 1 who is stated to be a lawyer. In a nutshell on account of the allegations contained in the plaint the petitioner being a party to the sale was treated as a voidable contract for which the cancellation had been prayed for in the declaratory form. The trial Court relied on Abdul Hamid alias Muhammad Abdul Hamid v. Dr. Sadeque Ali Ahmad etc. (P L D 1969 Dacca 357), and held that the plaintiff should pay ad valorem court‑fee. It was further observed that the plaintiff was not in possession of the suit land and he was permitted to add the prayer of possession by way of consequential relief. The revision was admitted for regular hearing to examine the contention of the petitioner that the present case was not covered under section 7 (iv)(c) of the Court Fees Act, 1890 and that the decision relied by the trial Court was distinguishable. On the other hand the learned counsel for the respondents argued that the petitioner was liable to pay the court‑fee on the value of the subject‑matter as the consequential relief by way of possession has been added. Section 7 (iv1(c)(d) of the Court Fees Act as added by the Punjab Finance Act, 1973, was also pressed into service. The basis on which the relief for possession was ordered to be added which has not been challenged before this Court may be stated: "It is admitted fact that the plaintiff is not now in possession, so I direct to amend his prayer by adding as consequential relief that possession also be delivered to .the plaintiff: If court‑fee is paid then suit valuation also be re‑fixed in the amended plaint directed to be put in. If the amendment suggested and directed is not filed the suit will be dismissed under Order VI, rule 18, C. P: C." On the suit as proposed to be filed with a consequential relief of possession, the court‑fee is liable to be paid on the market value of the property and there is no dispute about this proposition. In kalu Ram v. Babu Lal and others (A I R1932 All 485), it was held that in a declaratory suit the Court has to see what is the nature of the suit and of the reliefs claimed, having regard to the provisions of section 7 of the Court Fees Act. If a substantive relief is claimed though clothed in the garb of a declaratory decree with a con sequential relief, the Court is entitled to see what is the real nature of the relief. If the Court is satisfied that the substantive relief is not a mere con sequential relief but is a substantive relief, it can demand the proper court‑fee on that relief irrespective of the arbitrary valuation put by the plaintiff in the plaint on the ostensible consequential relief. The expression "consequential relief" in section 7(4)(c) was defined to mean some relief which would follow directly from the declaration given the valuation of which is not capable of being definitely ascertained which is not specifically provided for anywhere in the Act and cannot be claimed independently of the declaration as a substantive relief: it was further observed that where the suit is for the cancellation of an instrument under the provisions of section 39, Specific Relief Act, the relief is not a declaratory one. A suit for cancellation of an instrument under the provisions of section 39, Specific Relief Act was held not to be a declaratory one and, therefore, it neither was covered under section 7(4)(c) nor under Schedule II, Article 17(3) but under the residuary Article, Schedule 11, Article 1 of the Court Fees Act. In respect of the second relief claimed regarding the cancellation of the declaratory relief it was held that it was not a simple declaratory relief. The observations relevant to the present case are quoted below:‑ "The Court has to see what is the nature of the suit and of the reliefs claimed, having regard to the provisions of section 7, Court Fees Act. If a substantive relief is claimed though clothed in the garb of a declaratory decree with a consequential relief, the Court is entitled to see what is the real nature of the relief and if satisfied that it is not a mere consequential relief but a substantive relief it can demand the proper court‑fee on that relief irrespective of the arbitrary valuation put by the plaintiff in the plaint on the ostensible consequential relief. Suppose a plaintiff asks for a declaration that the defendant is liable to pay him money due under a certain bond and also asks for recovery of that amount ; or suppose that he asks for a declaration that he is owner of certain property and is entitled to its possession and asks for recovery of its possession; surely the reliefs for the recovery of money or for the recovery of possession cannot be treated as a mere consequential relief which can be arbitrarily valued at any low figure and court‑fees paid on that arbitrary, valuation only. In our opinion where a suit is for the cancellation of an instrument under the provisions of section 39, Specific Relief Act the relief is not a declaratory one. It falls neither under section 7(4)(c) nor under Schedule 2, Article 17(3), but under the residuary Article, Schedule I, Art. 1, Court Fees Act. We hold, therefore, that the court‑fee payable on the first relief is governed by Schedule I, Article

1. As regards the second relief, the prayer that the compromise may be cancelled is similar to a relief for the cancellation of the mortgage deed and is governed by the same Article. In our opinion a relief for the cancellation of a decree, or to be more accurate, for the setting aside of a decree is not a declaratory, relief only. The effect is not merely a declaration as to a person's character or status as contemplated by section 42, Specific Relief Act but the effect will be to render the decree void and incapable of execution and will free the plaintiff from all further liability under it. The claim, therefore, is not merely for a declaratory relief falling under Schedule II, Art. 7(3). Nor does the relief fall under section 7(4)(c). There is no prayer for a declaration that the decree is void, or for a declaration of any sort, so the relief that the decree be set aside cannot be regarded as a `consequential' relief in any sense of that word. We hold that the court‑fee in respect of the prayer for cancellation of the decree is payable under Schedule I, Art. 1 on the value of the decree."

3. In the judgment cited by the trial Court in Abdul Hamid alias Md. Abdul Hamid v. Dr. Sadeque Ali Ahmad etc. the earlier judgment of the same Court reported as Daibakilal Basak v. Iqbal Ahmad Qureshi etc. (P L D 1965 Dacca 439) was distinguished. In the judgment of Abdul Hamid the facts of the case were that the petitioner had instituted a suit as a plaintiff for a declaration that the bainama executed .by him and the opposite‑party was vitiated by fraud and undue influence, inoperative for want of consideration and was not binding against him. The opposite party had contested the suit on the plea that the suit was not maintainable and was not properly stamped for the purposes of the court‑fee. An issue to that effect was framed as regards the court‑fee payable. In these circumstances it was observed as under: "Thus in the instant case there is no manner of doubt that the impugned bainama is voidable or, the ground of, as alleged by the petitioner, being executed under undue influence, misrepresentation and fraud. A suit for avoiding documents to which the plaintiff was a party grounds of fraud, misrepresentation and undue influence is a suit for declaration with consequential relief and in such view of the matter we find that the learned Subordinate Judge was perfectly justified in directing the petitioner to put in ad valorem court‑fees." In the case reported as Vallayya Konar and another v. Ramaswami Konar and another (A I R 1939 Mad. 894) a difference was created between a suit .for the cancellation of an instrument and a suit for a declaration that the instrument is not binding upon the plaintiff. When plaintiff seeks to establish a title in himself and cannot establish that title without removing an insuperable obstruction such as a decree to which he has been a party or a deed to which he has been a party, then quite clearly he must get that decree or deed cancelled of declared void in toto and his suit is in substance a suit for the cancellation of the decree. or deed even though it be framed as a suit for cancellation It was further held that when a plaintiff is seeking to establish a title and finds himself threatened by a decree or a transaction between third parties he is not under compulsion to get that decree or that deed cancelled in toto In the case also the suit as originally framed shall be treated as one fog cancellation of the sale deed keeping in view the principle laid down in Kah Ram v. Babu Lal and others (A I R 1932 All. 485). In the case reported as Seth Chaman Das v Suhil Khan (P L D 1954 Bal. 26) it was held that a suit for a declaration that a bond would fall under section 39 and not under section 42, Specific Relief Act, such suit should bear court‑fee under section 7(iv)(c), Court Fees Act.

4. The upshot of the above discussion is. that whenever a plaintiff files a declaratory suit to establish his right in a property and there is document which he must get declared null and void before the relief can be granted it would be a suit for all intents and purposes one for the cancellation of such a document and the court‑fee payable would be under section. 7(iv)(c of the Court Fees Act though filed under the garb of the declaratory suit In the present case the position is, however, different. The plaintiff being out of possession had to file a suit for possession for which amendment has been allowed. The possession being the main relief court‑fee has to paid according to the value of the property. As already stated above the petitioner did net dispute that he was not in possession of the property any that the trial Court had wrongfully called upon him to amend the plaint In view of this matter no exception can be taken to the finding of the trial Court on this issue.

5. This revision has no force and is hereby dismissed with no order as to costs. M.Y.H. Petition dismissed.