The matter at hand involves Neelam Sharma and Others versus Amita Passan and Others, in which a very important legal query arises, one that needs to be solved, which is whether a joint owners’ suit for declaration and possession can do with fixed court fee or whether ad-valorem court fee is a requirement by the law as these co-owners assert joint possession.
According to the facts of the case, the plaintiffs, asserting that they are co-owners of a property situated at Panchkula which was inherited by them from their grandmother, filed a case seeking a declaration of their 1/4th share each, a declaration that the transfer alleged to have been made by defendant No. 1 is void being obtained through fraud, and separate possession of their respective shares with a decree for injunction. Defendant No. 2 filed an application for rejection of the plaint under Order VII Rule 11 of the Code of Civil Procedure on the ground that the suit is essentially for possession which is subject to ad-valorem court fee. The Trial Court dismissed the application on the basis of the ruling of the Supreme Court in Suhrid Singh v. Randhir Singh, wherein it was decided that the plaintiffs were not the executants of the transfer deed in question. The High Court overturned the decision of the Trial Court on the ground that since the plaintiffs are seeking a separate possession, ad-valorem court fee is applicable because possession is not being claimed.
The Supreme Court stated that while adjudicating upon an Order VII Rule 11 application only the averments of the plaint matter and in paragraph 4 of the plaint it is stated that the plaintiffs were residing in the suit property jointly with the defendants which amounts to the fact of joint possession. While applying the ruling in Suhrid Singh the Court held that the plaint cannot be rejected at the threshold and that the issue regarding court fees whether fixed or ad valorem can be decided only after leading evidence pertaining to facts regarding possession and transfer.
The importance of this ruling is that it reaffirms that Order VII Rule 11 applications should be decided strictly on plaint averments so that suits are not prematurely dismissed on account of some technical defects relating to the court fee. It also clarifies that disputes about possession which relate to allegations of fraud must be put through a full trial before the question of liability to pay court fees may be resolved.