NEELAM JAIN Vs. NARAYAN PRASAD

JUDGEMENT

(1.) BY filing this petition under Article 227 of the Constitution, the petitioner has challenged the order dated 14/12/2011, whereby the application of defendant preferred under Order 7 Rule 11 r/w Section 151 C.P.C. is allowed. Brief facts necessary for adjudication of this matter are as under:-

(2.) THE petitioner filed a suit for declaration and injunction. In the suit it is prayed that the sale deed dated 11/04/2011 be declared as null and void. As a consequential relief, it is prayed that defendant No.2 be restrained from alienating the suit property. The defendant No.2 filed an application on 21/06/2011 under Order 7 Rule 11 C.P.C. on the ground that in the plaint no cause of action is disclosed, the suit is not properly valued, it is barred by limitation etc. Parties were heard on this application and Court below by impugned order opined that the petitioner has prayed for a consequential relief and, therefore, petitioner is bound to pay ad valorem Court fees.

(3.) PER Contra, Shri Deepak Shrivastava learned counsel for the respondents No. 1 & 2 supported the order passed by Court below. He submits that petitioner has prayed for permanent injunction and a different relief and, therefore, Court below has committed no error of law in directing for payment of ad valorem Court fees. He submits that Court below has assigned cogent and justiciable reasons in support of the conclusions. In absence of any jurisdictional error or perversity, no interference is warranted. Learned counsel further submits that for claiming permanent injunction, it was open for the plaintiff/ petitioner to file a separate suit and therefore, applying the litmus test laid down by the Courts, it is clear that a consequential relief is prayed by the petitioner for which he is liable to pay ad valorem Court fees.