Suresh Kumar Sharma And ANR v. Renuka Pal

-1IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH Date of Decision.13.12.2016 Suresh Kumar Sharma and another .......Petitioners Vs Renuka Pal ........Respondent

Present:

Mr. Shashank Bhandari, Advocate for the petitioners.

Mr. D.P. Gupta, Advocate for the respondent.

CORAM:HON'BLE MR. JUSTICE AMIT RAWAL -.- AMIT RAWAL J. (ORAL) The petitioners-defendants are aggrieved of the dismissal of the application moved under Order 7 Rule 11 CPC for rejection of the plaint seeking the following relief:- "Suit for declaration for declaring the transfer in favour of the defendant No.2, namely Vikas Sharma, by defendant No.1 null and void.

AND For declaring the petitioner to be the owner in possession of House No.3940, Sector 47-D, Chandigarh by virtue of agreement to sell dated 2nd March 1989 executed between the plaintiff and the defendant No.1 along with having accepted sale consideration and been handed over legal, peaceful, continuous & unbroken possession."

Mr. Shashank Bhandari, learned counsel appearing for the petitioners submits that the suit ex facie in the aforementioned format was not maintainable particularly regarding the second relief of seeking declaration and barred under the provisions of 41(h) of the Specific Relief Act as no relief of specific performance under the 1963 Act has been

-2sought.

As regards the 1st relief, court fee regarding transfer of amount has to be paid. It is on this account, the application aforementioned was moved but the same has erroneously been dismissed. In case, the respondent-plaintiff had sought the relief under the Specific Relief Act, limitation has to be taken from the reckoning date and therefore, the suit for specific performance was barred by law of limitation and the cardinal language has been used, therefore, for this purpose application is maintainable.

Per contra, Mr. Gupta, learned counsel appearing for the respondent-plaintiff submits that the transfer is between the father and the son without any transfer fee and therefore, court fee was not liable to be paid.

As regard the second relief, it was a complete sale by virtue of agreement and the possession has also been handed over and therefore, a contract as per the provisions of Section 202 of the Contract Act, thus, the suit cannot be thrown out at the threshold being the mixed question of fact and law and urges this Court for confirming the order under challenge. I have heard learned counsel for the parties, appraised the paper book and of the view that though in the first instance, the argument of Mr. Bhandari looks attractive viz-a-viz the maintainability of the suit qua second relief but they shall be entitled to take up all these pleas in the written statement and press for framing of issue or any other relief regarding maintainability as preliminary issue but not in the manner and mode for dismissal of the suit at this stage.

As regards the payment of court fee, I am of the view that transfer does not prescribe any fee. It was a family transfer and the same has been

-3challenged by the third party. In the absence of the sale consideration in the transfer deed, the court fee, prima facie, is not liable to be paid but the market value of the property cannot be ignored and the same shall also be subject matter of the issue.

With the aforementioned observations, I do not intend to differ with the impugned order. Resultantly, the revision petition is disposed of. (AMIT RAWAL) JUDGE December 13, 2016 Pankaj* Whether speaking/reasoned Yes Whether reportable No