P L D 1985 Lahore 112 (PLP)

Nemo for Respondent. Date of hearing : 12th November, 1984. This civil revision has arisen out of a suit brought by the petitioner, Bashir Ahmad, against the respondent, Mushtaq Ahmad, for a declaration to the effect that an agreement deed, dated the 1st March, 1980, . showing that the petitioner had mortgaged a house in favour of the respondent was void and illegal as it was without consideration and was procured by fraud and collusion and as such it did not affect the petitioner's rights in the said house. By way of consequential relief, the petitioner prayed for a permanent injunction restraining the respondent from acting on the said agreement deed or causing harassment to him (petitioner) through the police. The petitioner valued the suit at Rs. 200 for the purpose of court-fee and did not pay any court-fee thereon because the valuation being less than Rs. 25,000, no court-fee was required to be paid. By his order, dated 23rd February, 1981, a civil Judge, who was seized of the suit, however, directed that since the mortgage money mentioned in the deed in question was Rs. 69,000 the petitioner should pay court-fee on the said amount. Feeling aggrieved by the above order of the learned Civil Judge, the petitioner has come up in revision to this Court:

2. It seems that the learned Civil Judge had relied upon the provisions of clause (iv-A) of section 7 of the Court Fees Act, 1870, while making the impugned order.

3. It was by means of section 8 of the Punjab Finance Act, 1973, that clause (iv-A) was inserted in . section 7 in the Court Fees Act. Relevant portion of section 8 of the Punjab Finance Act reads as follows "

8. Amendment of Court Fees Act, 1870 (Act No. VII of 1870). In the Court Fees Act, 1870 (Act No. VII of 1870); in its application, to the Province of the Punjab, (a) In section 7 (i) In clause (iv), the comma at the end shall be replaced by a colon and thereafter the following proviso shall be added `Provided that nothing in this clause shall apply to suits mentioned in clause (iv-A)'. (ii) after the existing clause (iv) the following new clause shall be added : (iv) For a declaratory decree regarding immovable property on the basis of alleged sale etc.-In suits for a declaratory decree with or without consequential relief as to right in or title to immovable property based on alleged sale, gift, exchange or mortgage according to the value of the property,' ??????????????????????????????????. ??????????????????????????????????. 4. . Before the above amendment was made by section 8 of the Punjab Finance Act, provisions relating to suits for declaratory decree and consequential relief, relating to movable as well as immovable property, whether based on alleged sale, gift, exchange or mortgage or otherwise, were contained in sub-clause (c) of clause (iv) of section 7 of the Court Fees Act, and it was for the plaintiff to state the amount at which he valued the relief sought. Thus, provisions of clause (iv-A), which relate to suits for a declaratory decree regarding immovable property based on alleged sale, gift, exchange or mortgage, are in the nature of an exception to sub-clause (c) of clause (iv).

5. One of the objects for which law relating to court-fee for declaratory suits was amended by means of section 8 of the Punjab Finance Act was to discourage declaratory suits which were aimed at acquiring right or title to, .or interest in, immovable property by avoiding payment of expenses which are required to be incurred for execution and registration of deed .for acquiring such right, title or interest. Before the addition of clause (iv-A), collusive suits .for declaration used to be filed to procure documentary evidence regarding transfer of right or title to, or interest in, immovable property. For instance, if a father wanted to transfer some landed property to his son, the former asked the latter to institute, a suit for declaration to the effect that the former had made gift of the property in his favour and on the filing of such suit, the former confessed judgment whereupon the Court passed consent decree in favour of the latter, and the same was made use of by .him as a document of title. In this way, they avoided purchase of stamped paper for execution of a gift deed and the payment of registration charges. This is' no longer possible under the amended law.

6. Clause (iv-A), as worded at present, obliges,. a plaintiff to pay court-fee according to the value of the immovable property if his claim is based on alleged sale, gift, exchange or mortgage. However, if the claim of 'the plaintiff-is not s6 based acid i$ founded on something else, such as right of inheritance, but his claim is refuted by the defendant by placing reliance on alleged sale, gift, exchange or mortgage, the plaintiff will not be required to pay court-fee according to -the value of the property and will be at liberty to state, under sub-clause (c) of clause (iv), the amount at which he values the relief sought. In the instant case, the petitioner has challenged the validity of the mortgage relied upon by the respondent. Since the petitioner's claim is not based on the alleged mortgage and, instead, he is seeking declaration to the effect that his right of ownership in regard to the land in question is -not affected by the mortgage relied upon by the respondent, the petitioner's suit does not attract the provisions of clause (iv-A). It falls within the purview of sub clause (c) of clause (iv).and, therefore, no valid exception can be taken to the valuation of the suit fixed by him at Rs.

200. Similar view was expressed by me in Lal Din and another v. Rasul Bibi (P L D 1982 Lah. 615).

5. Resultantly, I accept this civil revision, set aside the order of the learned Civil Judge and direct him to proceed further with the suit in the light of above observations and according to law. There shall be no order as to costs. M. Z. M. ??????? Revision accepted.