1993 PLP 1391 (CLC)

In order to determine the proper court‑fee payable on the plaint in a particular suit, the correct principle is that the plaint as a whole should be looked at and that it is the substance of the plaint and not its ostensible form which really matters. The veil could be pierced through by a searching eye for judging the true substance of the ‑plaint to determine the taxability of court‑fee on the plaint. There is a difference between a suit for cancellation of a document under section 39 of the' Specific Relief Act and a. suit for declaration of title filed under section 42 of the Specific Relief Act. When a party had sought to establish a title to the property in himself and could not establish that title without removing an obstacle such as a deed by which he was otherwise bound, then quite clearly he must get that deed avoided and his suit, though camouflaged in a declaratory form must in reality be a suit for cancellation of the document. Father of the plaintiff had made a gift of his properties in favour of his one son, unless those gift‑deeds were avoided in toto, the plaintiff could not succeed in his suit for separation of his share through partition of the properties. Registered gift deeds were an insuperable obstacle in the way of the plaintiff for getting the appropriate relief claimed by him. Therefore, though the suit was put in the form of declaratory relief for avoidance of registered gift‑deeds yet the slit was visibly intended for cancellation of two documents executed by his father in his lifetime. Therefore, the plaintiff was liable to payment of ad valorem court‑fee on the value of the subject‑matter in dispute under Article 1, Schedule 1 of the Court Fees Act and that valuation was already given in the registered gift deeds sought to be avoided in the suit by the plaintiff. (b) Court Fees Act (VII of 1870)‑‑‑ ‑‑‑‑S. 8(iv) (c) & Sched. 1, Art. 1‑‑‑Avoidance of registered sale‑deed‑‑‑Suit for declaration‑‑‑Such suit, in fact being visibly intended for cancellation of registered documents, plaint was liable to payment of ad valorem court‑fee on the value of the subject‑matter in dispute under Art. 1, Sched. 1 of Court Fees Act, 1870. Ibad‑ur‑Rehman Lodhi for Petitioner. The question in the petition filed in extraordinary jurisdiction of this Court was, whether the reliefs claimed in the suit were to be computed for purposes of payment of court‑fee under section 7 (iv) (c) of the Court Fees Act upon the arbitrary valuation given in the plaint, or that those were liable to payment of ad valorem court‑fee on the value of the subject‑matter in dispute under Article 1, Schedule 1 of the Court Fees Act. Facts out of which the present petition had arisen were briefly these:‑ A residential house at Naya Mohallah and a shop in Bazar Talwaran of Rawalpindi City belonged to Muhammad Latif: By two registered deeds dated 26‑4‑1989, he gifted above two properties in favour of his son Muhammad Akhtar. Other son namely Muhammad Riaz Aslam was overlooked by him. Value of the residential house was assessed at Rs.1,20,000 in the gift‑deed and the shop at Rs.93,

000. Total valuation of both the properties assessed by the donor was Rs.2,13,

000. After making of the donation, the donor. breathed his last. Deprived son brought a civil suit for declaration to the effect that registered gift‑deeds in respect of the house and shop executed by his father were null and void qua his right to inherit them and as a consequential relief sued for separate possession through partition of his one‑half share in them. In para.5, the value for purposes of court‑fee and jurisdiction with regard to the relief of declaration was assessed at Rs.400 and for purposes of partition, suit was valued at rupees two lacs being the value of one‑half share claimed by the! plaintiff and a court‑fee of Rs.10 was affixed upon the plaint with the observation that "later on it shall be affixed as directed by the Court". In the written statement submitted by the defendant, an objection to the proposed valuation of the suit for purposes of court‑fee was raised in preliminary objection No.2. Trial Court framed issues on merits including the issue relating to insufficiency of court‑fee paid upon the plaint. Issue as to the court‑fees was treated as preliminary and by order dated 12‑9‑1992, it was found that "the suit is not deficiently stamped as alleged by the defendant. The plaintiff has paid the court‑fee of Rs.10 as required by law, however, after partition of the suit property, the plaintiff is bound to pay court‑fee as per their share. This issue is decided in favour of the plaintiff". Defendant preferred a revision and succeeded to have the finding from learned Additional District Judge, Rawalpindi, that "the case falls under section 7 (iv) (c) of the Court Fees Act and ad valorem court‑fee shall be paid by the plaintiff". After having given the above findings, the revisional Court directed the trial Court to call upon the plaintiff to pay ad valorem court‑fee as provided under section 7 (iv)(c) of the Court Fees Act and then to proceed with the matter in accordance with law. Order passed in revision is dated 20‑2‑1993. It is assailed by the aggrieved plaintiff in extraordinary jurisdiction of this Court. Ibad‑ur‑Rehman Lodhi, Advocate, learned counsel for the petitioner argued that per frame of the plaint and the reliefs claimed in it, the matter squarely fell within the ambit of section 7 (iv) (c) of the Court Fees Act and the Court was obliged to accept the valuation given in the plaint for payment of court‑fee on it. It was urged that the provisions in section 7 (iv) (c) gave an absolute discretion to the plaintiff to value his suit for purposes of court‑fee on the sum given by him and the Court was incompetent to ignore or bypass it for differing with the proposed assessment of the valuation given by the plaintiff. In support of his contention, learned counsel referred to rulings reported in S.R. M. Ramaswami Pillai v. Ramaswami Pillai and others AIR 1946 Madras 181, Kedar Nath Gupta and another v. Dulhin Mod Kuar and others AIR 1961 Patna 470, Muhammad Sharif and another v. Mst. Azra Perveen and another 1980 CLC 1878 (Lahore), Lal Din and another. v. Rasul Bibi PLD 1982 Lahore 615 and Bashir Ahmad. v. Mushtaq Ahmad PLD 1985 Lahore

112. There was no doubt that in order to determine the proper court‑fee payable on the plaint in, a particular suit, the correct principle was that the plaint as a whole should be looked at and that it was the substance of the plaint and not its ostensible form which really mattered. The veil could be pierced through by a searching eye for judging the true substance of the plaint to determine the taxability of court‑fee on the plaint. There was a difference. between a suit for cancellation of a document under section 39 of the Specific Relief Act and a suit for declaration of title filed under section 42 of the Specific Relief Act. When a party seeks to establish a title to the property in that title without removing an obstacle such as a then quite clearly he must get that deed declaratory form must in reality father of the unless those in his suit for through partition of them. Registered gift‑deeds were plaintiff for getting the appropriate Therefore, though the suit was put in the form of s visibly of two documents executed by his father in his the plaintiff was liable to payment of ad valorem court‑fee on the value of the subject‑matter in dispute under Article 1, Schedule 1 of the Court Fees Act and that valuation was already given in the registered gift deeds sought to be avoided in the suit by the plaintiff. Upon correct reading of the plaint and the provision of Court Fees Act applicable to it, I do not find that the impugned order was either without jurisdiction or lawful authority for interference in extraordinary jurisdiction by this Court. In taking the above view, I felt support by a judgment in the case of Sukh Lal and others v. Devi Lal and others AIR 1954 Rajasthan

170. In my opinion, the case enunciated the rule of court‑fee correctly and I would agree with it in adopting it for the application to the present case. Case of Rashid Ahmad v. Haq Nawaz and others 1982 CLC 9 (Lahore) also supported the above view. The case‑law cited by the learned counsel has distinguishing features and did not fully cover the point at issue. The reasons in Rajasthan's case were more appealing and helpful. Upon this view of the matter, I decline to interfere in writ jurisdiction of this Court. Consequently, writ petition is dismissed in limine. The plaintiff may pay the required court‑fee upon the plaint to have the decision of his case on merits. AA./M‑973/L , Petition dismissed.