JAIPAL CHANDEL Vs. SHRI KRISHAN

JUDGEMENT

(1.) THE petitioner is aggrieved by the order dated 16.07.2011 whereby he has been directed to pay ad-valorem court fee on the plaint filed by him.

(2.) RECORD shows that the present suit is a suit for declaration, permanent and mandatory injunction. The averments in the plaint are relevant. The contention of the plaintiff is that there was a common gali/road measuring 19" in between house of the plaintiff and the defendants; defendants are strong and influential persons; they have raised an illegal and unauthorized construction in this common gali to block the free passage of the local residents including the plaintiff. Criminal complaints had also been filed. In para 13 of the plaint it has been averred that a writ petition had also been filed earlier in time wherein the defence of the defendants was that they have purchased this suit land. Contention is that the defendants are encroaching upon the public land which is not permissible in law. Prayer made in the plaint is that a declaration be made that the power of attorney, agreement to sell and receipt dated 08.03.1989 relied upon by the defendants to substantiate their defence that they have purchased this suit property be declared null and void; decree of perpetual injunction be passed against the defendants restraining them from raising any unauthorized or illegal construction in the suit land; decree of mandatory injunction be also passed against the defendants directing them to demolish the wall which they have wrongly made in the common gali. These averments in the plaint had been construed in the impugned order; the impugned order had noted that the plaintiff not being in possession, by way of the present suit is actually seeking a relief of possession although it has been couched as a suit for declaration and mandatory injunction; in this view of the matter, the fixed court fee filed by the plaintiff had been disallowed. The impugned order had directed the plaintiff to make up the deficiency in the Court fee and pay ad-valorem court fee.

(3.) THE plaintiff not seeking the relief of possession; nothing prevented him from filing the suit in the present form by paying a fixed court fee; his case falls within the ambit of Section 7(iv)(d) and Article 17 (iii) of Schedule II and of the Court Fee Act which provides that a fixed Court fee has to be affixed on such a suit. Impugned order suffers from an infirmity on this count. It is set aside. Petition is allowed.