ASHOK KUMAR BAFNA Vs. KEWALCHAND BAFNA

JUDGEMENT

(1.) Order dated 17-01-2012 passed by Special Sessions Judge, Harda, in Civil Suit No. 5-A/2011 is being assailed vide this petition under Article 227 of the Constitution of India. By the said order trial Court while allowing the application under Order 7 Rule 11 of the Code of Civil Procedure, 1908, (hereinafter referred to as the CPC)filed by the respondents/defendants has directed the petitioner to pay advalorem court fees on the value of the sale deed, the validity whereof is being challenged in the suit.

(2.) The suit as apparent from the plaint brought on record is for declaration, permanent injunction and physical possession of the suit property bearing Khasra No. 140/2 admeasuring 260 sq. ft. whereon two shops admeasuring 20' x 13' are constructed. A declaration is also sought that the sale deed dated 22-03-1999 executed by respondent No. 1 be declared null and void and not binding on the petitioner. Respondent No. 2/defendant No. 2 filed an application under Order 7 Rule 11, CPC, whereby he sought dismissal of the suit on the ground that it is barred by limitation as the sale deed dated 22-03-1999 is being questioned after a lapse of 12 years and that the petitioner is liable to pay ad-valorem court fees as the sale deed under challenge was executed by the respondent No. 2 as a power of attorney holder of respondent No. 1, who was the owner of the property in question. The trial Court while confining the hearing on application to the extent of payment of ad-valorem court fees and on recording a finding that beside the declaration the petitioner has also sought consequential relief of possession of the suit property and that the suit property being not an agricultural land but a property in the urban area within the municipal limit directed the petitioner to pay the ad-valorem court fees as per section 7 (iv) (c) read with clause (v) of the Court Fees Act, 1870.

(3.) The sole issue, therefore, which crops up for consideration is as to whether the trial Court was justified in directing the petitioner to pay the ad-valorem court fee.