2002 PLP 1549 (CLC)

(a) Specific Relief Act (I of 1877)‑‑‑ ‑‑‑‑Ss. 39 & 42‑‑‑Court Fees Act (VII of 1870), S. 7(iv)(c), Sched. II, Art. 17(iii)‑‑‑Declaration and cancellation of document ‑‑‑Court‑fee‑‑ Where suit is to obtain simple declaratory relief, court‑fee payable in such suit is under Art. 17(iii) of the Sched. II to the Court Fees Act, 1870‑‑‑Not necessary by implication for the plaintiff in suit for declaration to ask for consequential relief as contemplated under S.39 of the Specific Relief Act, 1877‑‑‑Where the plaintiff has not asked for such consequential relief it cannot be held that he should have made a prayer for such a relief but if a suit is framed as one for declaration that certain document is void and is to be treated as one under S.39 of the Specific Relief Act, 1877, and partly under S.42 of the Specific Relief Act, 1877, in such a case the plaintiff is liable to pay ad valorem court‑fee under S.7(iv)(c) of the Court Fees Act, 1870. (b) Specific Relief Act (I of 1877)‑‑‑ ‑‑‑‑Ss. 39 & 42‑‑‑Court‑Fees Act (VII, of 1870), S.7(iv)(c), Sched.11, Art. 17(ii)‑‑-Constitution of Pakistan (1973), Art. 199‑‑‑Constitutional petition‑‑‑Fixation of court‑fees‑‑‑Suit for declaration and cancellation of agreement to sell was filed by the plaintiff alleging the same to be void ab initio on the ground that it was not executed by her but was an act of fraud‑‑‑Defendant filed application under O. VII, R.11, C.P.C. for the rejection of plaint as the plaintiff failed to fix ad valorem court‑fee‑‑‑ Application was dismissed by the Trial Court but the Appellate Court allowed the same and directed the plaintiff to affix the court‑fee under S.7(iv)(c) of the Court Fees Act, 1870‑‑‑Validity‑‑‑Where the plaintiff had asked for declaration under S.42 and for cancellation of the document under S.39 of the Specific Relief Act, 1877, she was liable to pay ad valorem court‑fee under S.7(iv)(c) of the Court Fees Act, 1870‑‑ Appellate Court had, rightly exercised its jurisdiction vested in it under the law and directed the plaintiff to affix the requisite court‑fees. Daibakilal Basak v. Iqbal Ahmed Qureshi and another PLD 1965 Dacca 439 distinguished. Abdul Harrild alias MD. Abdul Hamid v. Dr. Sadeque Ali Ahmad and others PLD 1969 Dacca 357; Mst. Bhagan through L.Rs. v. Mubar.ik Begum and others NLR 1984 Civil 59; Ghulam Hussain Shah v. Hidayatullah Khan PLD 1981 Azad J&K 55; Mst. Nasim Akhtar v. Muhammad Sabeel and others PLD 1991 Azad J&K 66 and Muhammad Afzal Khan v. Muhammad Hayat Khan and another 2000 MLD 1611 ref. JUDGMENT Through this writ petition the petitioner has assailed the order, dated 28‑1‑1991 passed by the Additional District Judge, Toba Tek Singh, praying that the same has been passed without lawful authority and of no legal effect.

2. Mst. Parveen Akhtar, petitioner herein, filed a suit for declaration that agreement to sell dated 12‑10‑1989 as well as receipt of the same date has been procured by the respondents through fraud, misrepresentation and on the pretext that a power of attorney is required from the petitioner to prosecute a pending suit in the Court of Civil Judge, Kamalia titled Wahid Ullah v. Raja Nasir and others. The suit was contested by respondent No. 1 by filing a written statement, and from the divergent pleadings of the parties issues were framed. The respondent filed an application under Order VII, rule 11, C.P.C. for amendment of para.7 of the plaint to show that the value of the suit for purposes of jurisdiction and court‑fee as Rs.3.lacs according to the value of the agreement to sell. The learned Civil Judge dismissed the application of the respondent vide order, dated 3‑12‑1990. In revision petition, the learned Additional District Judge; Toba Tek Singh (respondent No.3) accepted the same and allowed the application of the respondent under Order VII, rule 11, C.P.C. vide order, dated 28‑1‑1991 and determined the value of the suit for the purposes of jurisdiction and Court as Rs.3 lacs. This order of the learned Additional District Judge, dated 28‑1‑1991 has been assailed in this writ petition.

3. The learned counsel for the petitioner contends that the .issues have been framed in the suit from the divergent pleadings of the parties and without recording the evidence the learned Additional District Judge was not competent to pass the impugned order for determination of the value of the suit for purposes of court‑fee. Further contends that the suit filed by the petitioner was for declaration that the agreement has been obtained through fraud and misrepresentation, therefore, the suit was correctly valued at Rs.200.

4. Conversely, the learned Assistant Advocate‑General argued that the suit is not for declaration simplicitor but in consequence of that the document, i.e. agreement to sell, dated 12-10‑1989 and receipt have been prayed to be cancelled. In this view of the matter, she is of the opinion that the order of learned Additional District Judge is correct.

5. To my mind, a perusal of the plaint would show that the petitioner has filed suit under section 42 of the Special Relief Act (I of 1877) for declaration that the agreement to sell is fraudulent and also for cancellation of the same under section 39 of the said Act. In this view of the matter, the interpretation of section 7(iv)(c) and Article 17(iii) Schedule II of the Court Fees Act is involved. The suit for declaration that a certain document was void, ab initio on the ground that it was not executed by the plaintiff but by somebody else and the document has no effect on the right, title and interest of the plaintiff, is a suit to obtain simple declaratory relief and as such the court‑fee payable in the suit is under Article 17(iii) of the IInd Schedule to the Court Fees Act and not under section 7(iv)(c) of the Act. It is not necessary by implication for the plaintiff in a suit for declaration to ask for consequential relief as contemplated under section 39 of the Specific Relief Act and if the plaintiff has not asked for such a consequential relief he cannot be held that he should have made a prayer for such a relief. But if a suit is framed as one for declaration that certain document is void and is to be treated as one under section' 39 of the Specific Relief Act, 1877 and partly under that section and partly under section 42 of the Specific Relief Act, the plaintiff would be liable to pay ad valoram court‑fee under section 7(iv)(c) of the Court Fees Act.

6. Now I on the touch stone of the above expression of the two different provisions of the Court Fee Act, i.e. Article 1.7(ii) of the IInd Schedule and section 7(iv)(c) of the Court Fees Act (VII of 1870), it is to be clinched that the plaintiff has asked for declaration under section 42 and for cancellation of the document under section 39 of the Specific Relief Act (I of 1877), and therefore, was liable to pay ad valorem court- fee under section 7(iv)(c) of the Act.

7. The prayer clause of the suit filed by the petitioners on 9‑7‑1990 reads as follows:‑‑ URDU TYPING 1552 In case reported as Daibakilal Basak v. Iqbal Ahmed Qureshi and another PLD 1965 Dacca 439 it was held: --‑‑ (a) A suit for a declaration that a certain document was void ab-initio on the ground that it was not executed by the plaintiff but by somebody else and that the document has not affected the right, title and interest of the plaintiff is a suit to obtain a simple declaratory relief, and, as such, the, court‑fee payable in the suit is under Article 17(iii) of the Second Schedule to the Court Fees Act and not under section 7(iv)(c) of that Act. The interpretation of the above two provisions i.e. section 7(iv) (c) of the Court Fees Act along-with provision of sections 42 and 39 of the Specific Relief Act (I of 1877) came for interpretation before a Division Bench of Dacca High Court in case reported as Abdul Hamid alias MD Abdul Hamid v. Dr. Sadeque Ali Ahmad and others PLD 1969 Dacca 357 and it was held: ‑‑ (d) Court Fees Act.(VII of 1870), S.7(iv)(c)‑‑‑Suit for avoiding to which plaintiff was party on grounds of fraud, misrepresentation and undue influence‑‑‑A suit for declaration with consequential relief‑‑‑Ad valorem court‑fee, held; payable in circumstances. A suit for avoiding documents to which the plaintiff was a party on grounds of fraud; misrepresentation and undue influence is a suit for declaration with consequential relief and in such view of the matter it was held that the trial Court was perfectly justified in directing the petitioner to put in ad valorem court‑fee." In the above‑referred two judgments of the Dacca High Court, the distinction has been drawn in a suit for declaration simplicitor under section 42 of the Specific Relief Act and suit for declaration along-with cancellation of a document under sections 42 and 39 of the Specific Relief Act. The first judgment of Daibakilal Basak v. Iqbal Ahmed Qureshi and another PLD 1965 Dacca 439 is distinguishable and is not applicable to the facts and circumstances of the case and judgment in case Abdul Hamid alias MD. Abdul Hamid v. Dr. Sadeque Ali Ahmad and others PLD 1969 Dacca.357 which is D.B. judgment of the Dacca High Court, is to be followed, and it is held that the petitioner was liable to pay ad valorem court‑fee on the plaint of the suit. The above‑referred judgment of Division Bench of the Dacca High Court has been followed in case reported as Mst. Bhagan through L.Rs. v. Mubarik Begum and there NLR 1984 Civil 59 and it was held that ad valorem court‑fee on suit for declaration and cancellation of sale‑deed, which is not void but void-able at option of the party whose consent was procured by fraud, was payable on such a suit. The plaintiff has fixed Rs.200 for the purposes of court‑fee and jurisdiction in the plaint. In this view of the matter, it is argued that the impugned order is not warranted under the law. This contention/ argument has no force. It is not necessary for the court‑fee and jurisdictional value to be same except in cases covered by section 8 of the Suit Valuation Act (VII of 1887). See case of Ghulam Hussain Shah v. Hidayatullah Khan PLD 1981 Azad J&K

55. In case reported as Mgt. Nasim Akhtar v. Muhammad Sabeel and others PLD 1991 Azad J&K 66 while interpreting different provisions of the Court Fees Act. (VII of 1870) the Court has ruled: ‑‑ Where plaintiff could not ask or main relief viz. possession without asking for a declaration, such suit would be one for declaration with consequential relief for possession‑‑‑Suit in such a case would be covered by provision of section 7(iv)(c) and not by section 7(v)(d), Court Fees Act, 1870‑‑‑Where, however, it was proved that without seeking declaration, plaintiff was entitled to seek relief of possession then suit would be covered by provision of section 7(v)(d), Court Fees Act, 1870‑‑‑Where from the nature of the suit consequential relief could be allowed only when plaintiff through declaration from competent Court had succeeded in removing any other obstacle then in such‑like cases declaration would be the legal necessity for obtaining the real relief from the Court. In a recent judgment reported as Muhammad Afzal Khan v. Muhammad Hayat Khan and another 2000 MLD 1611 (D.B.) the Court has finally settled the matter at rest by observing that, where further relief would flow from declaration suit filed by plaintiff fell under section 7(iv)(c) of Court Fees Act, 1870 read with Schedule 11, Article 17(iii) of said Act. For what has been discussed above, the order of the learned Additional District Judge, Toba Tek Singh, dated 28‑1‑1991 is legally IC correct. He exercised his jurisdiction vested in him under the law. This writ petition has no force and the same is dismissed. Q.M.H./M.A.K./P‑65/L Petition dismissed.