# Ansar Nawaz Khan Revisionist v. Adeel Ahmad & Ors

- **Citation:** (2023) 4 ILRA 139
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-16
- **Case number:** Civil Revision No. 14 of 2023
- **Bench:** Manish Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ansar-nawaz-khan-revisionist-v-adeel-ahmad-ors-50067
- **Pages:** 7

## Headnote

A. Civil Law - Court Fees Act, 1870 -
Sections 7 (iv-A) and (iv-A) Suit for
declaration,
not
for
possession
-
Application of provision - Held, suit for
declaratory decree has been filed with
consequential relief of only permanent
injunction and not for possession. In
such circumstances, Court fees would
be payable in terms of Section 7(iv)(a)
of the Act and not in terms of Section
7(iv-A) of the Act and therefore only a
fixed Court fee of Rs. 500/- was
payable
by
the
revisionist.
The
Tribunal has clearly erred in holding ad
valorem Court fee being payable. (Para
21)
Revision allowed. (E-1)
List of Cases cited:

## Text

4 All. Ansar Nawaz Khan Vs. Adeel Ahmad & Ors.
139
under Section 83(2) of the Act of 1995 has
been dismissed as infructuous only on the
ground that he has been removed from the
post of Mutawalli/Secretary of the managing
committee of waqf. The Tribunal has clearly
not adverted to other provisions of Section
83(2) of the Act of 1995 pertaining to
whether the suit was maintainable in
individual capacity of revisionist either as a
person aggrieved or as a person interested in
the waqf.

20. The aspect of a person aggrieved by
the order dated 16th February, 2022 was also
required to be seen in the context of pleading
made in the plaint particularly with regard to
paragraph 16 thereof in which the revisionist
has clearly stated that the person inducted in
the management of the waqf have no concern
with the management and that their inclusion
is also barred under provisions of Section
32(2)(g) of the Waqf Act, 1995. The
aforesaid pleadings made by revisionist in his
plaint have clearly been ignored by the
Tribunal while passing the impugned order.

21. Considering the aforesaid factors,
the impugned order dated 26th December,
2022 passed by the Waqf Tribunal in case
No. 37 of 2022 being against provisions of
Act,1995 is hereby set aside.

22. Consequently the revision succeeds
and is allowed. Parties to bear their own cost.
----------
(2023) 4 ILRA 139
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.03.2023

BEFORE

THE HON'BLE MANISH MATHUR, J.

Civil Revision No. 14 of 2023

Ansar Nawaz Khan ...Revisionist
Versus
Adeel Ahmad & Ors. ...Opposite Parties

Counsel for the Revisionist:
Mohammad Tariq Saeed

Counsel for the Opposite Parties:
Sunil Sharma, Farhan Habib, Ruved Kamal
Kidwai, Syed Aftab Ahmad

A. Civil Law - Court Fees Act, 1870 -
Sections 7 (iv-A) and (iv-A) Suit for
declaration,
not
for
possession
-
Application of provision - Held, suit for
declaratory decree has been filed with
consequential relief of only permanent
injunction and not for possession. In
such circumstances, Court fees would
be payable in terms of Section 7(iv)(a)
of the Act and not in terms of Section
7(iv-A) of the Act and therefore only a
fixed Court fee of Rs. 500/- was
payable
by
the
revisionist.
The
Tribunal has clearly erred in holding ad
valorem Court fee being payable. (Para
21)
Revision allowed. (E-1)
List of Cases cited:
1. Basant Kumar Mata Nehliya Vs Chowdhary
Ujjair; (2011) 89 ALR 551
2. Dr. Sushil Suri Vs Harish Suri & ors.; 2023(2)
ADJ 552 (L.B)
3. Chief Inspector of Stamps Vs Laxmi Narain;
AIR 1958 SC 245
4. Suhrid Singh Vs Randhir Singh & ors.;
(2010)12 SCC 112

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard Mr. Mohammad Tariq
Saeed, learned counsel for revisionist, Mr.
Sunil Sharma and Mr. Ruved Kamal
Kidwai, learned counsel for opposite party
no.2 and Mr. Syed Aftab Ahmad, learned
counsel for opposite party no.8.
140 INDIAN LAW REPORTS ALLAHABAD SERIES

2. In view of order being proposed to
be passed, notices to opposite parties no.1,
3, 4, 5, 6 and 7 stand dispensed with.

3. Learned counsel for opposite
parties submit that since a question of law
is involved, the revision may be decided
without objections being filed by the
answering opposite parties.

4. Revision under section 83(9) of the
Waqf Act 1995 has been filed against order
dated 17.11.2022 passed in Case No.38 of
2020 whereby revisionist-plaintiff has been
directed to pay ad valorem Court fees on
the relief sought in plaint.

5. Learned counsel for revisionist
submits that the aforesaid case had been
filed by revisionist seeking a relief of
permanent
injunction
against
the
defendants and their agents from interfering
in peaceful possession over suit property.
Further relief for a decree of declaration for
properties entered in Waqf deed dated
03.12.1924 as Waqf Properties were also
sought. It is submitted that for the purposes
of payment of Court fees, it was indicated
in the plaint that Waqf Property not having
marketable value, only for the purposes of
payment of Court fee, suit was being
valued tentatively at Rs.1000/- and since
prayer for permanent injunction had been
sought, the maximum prescribed Court fee
of Rs.500/- was being paid and on the point
of declaration, Rs.200/- was being paid.

6. It is submitted that objection
against the valuation and Court fee was
filed by defendants whereafter by means of
impugned order dated 17.11.2022, the
Waqf Tribunal held that in view of relief
sought in the suit, ad valorem Court fee
was payable which was required to be paid
within a period of two weeks.

7. Learned counsel for revisionist
submits that while passing impugned order,
Tribunal has ignored specific provisions of
Section 7 of Court fee Act 1870 inasmuch
as, with regard to relief sought, Court fee
was payable only in terms of Section
7(iv)(a) excluding the provisions of Section
7(iv)(A) of the aforesaid Act and as such
only the fixed Court fees was required to be
paid as indicated in plaint and not ad
valorem Court fee.

8. Learned counsel has placed
reliance on judgment rendered by Division
Bench of this Court in the case of Basant
Kumar Mata Nehliya versus Chowdhary
Ujjair reported in (2011)89 ALR 551 to
buttress his submission.

9. Learned counsel appearing on behalf
of opposite parties on the other hand submits
that in view of consequential relief being
sought by the revisionist-plaintiff, Tribunal
has rightly considered the provisions of
Section 7 of the Act and has rightly adjudged
ad valorem Court fee being payable by
plaintiff in view of relief that has been sought
in plaint.

10. He has placed reliance on judgment of
Coordinate Bench rendered by this Court in the
case of Dr. Sushil Suri versus Harish Suri and
others reported in 2023(2) ADJ 552 (L.B).

11. Upon consideration of submissions
advanced by learned counsel for parties, the
question of law requiring adjudication is
whether in a suit for declaration with
consequential relief for permanent injunction,
ad valorem Court fee or fixed Court fee is
payable in terms of Section 7(iv) of the
Court Fees Act, 1870.

12. For the aforesaid purpose, it is
relevant to indicate that in the suit filed by
4 All. Ansar Nawaz Khan Vs. Adeel Ahmad & Ors.
141
revisionist, a decree for declaration of suit
properties as Waqf Properties in terms of
Waqf deed dated 03.12.1924 was sought
along
with
consequential
relief
of
permanent injunction to restrain defendants
from interfering in the peaceful possession
of plaintiff over the suit property. It is
noticeable that no prayer for consequential
relief of possession has been sought by the
plaintiff.

13. Section 7 of Court Fees Act,
1870, which is relevant for the purposes is
as follows:

"Computation of fees payable in
certain suits for money. -- The amount of
fee payable under this Act in the suit next
hereinafter mentioned shall be computed as
follows:

For money--(i) In suits for money
(including
suits
for
damages
or
compensation, or arrears of maintenance,
or annuities, or of other sums payable
periodically)-according to the amount
claimed;

For maintenance and annuities-
(ii-a) In suits for maintenance and
annuities
or
other
sums
payable
periodically, according to the value of the
subject-matter of the suit and such value
shall be deemed to be ten times the amount
claimed to be payable for one year:

Provided that in suits for personal
maintenance by females and minors, such
value shall be deemed to be the amount
claimed to be payable for one year;

For reduction or enhancement of
maintenance and annuities-(ii-b) In suits
for
reduction
or
enhancement
of
maintenance and annuities or the sums
payable periodically according to the value
of the subject-matter of the suit and such
value shall be deemed to be ten times the
amount sought to be reduced or enhanced
for one year,

For
other
movable
property
having a market value-(iii) In suits for
movable property other than money, where
the subject-matter has a market valueaccording to such value at the date of
presenting the plaint;

For declaratory decree with
consequential relief (iv) In suits-(a) to
obtain a declaratory decree or order,
where consequential relief other than
reliefs specified in sub-section (iv-A) is
prayed; and

For accounts.- (b) For accounts
according to the amount at which the relief
sought
is
valued
in
the
plaint
or
memorandum of appeal:

Provided that in suits falling
under Clause (a), where the relief sought is
with reference to any immovable property,
such amount shall be the value of the
consequential relief and if such relief is
incapable of valuation, then the value of
the immovable property computed in
accordance with sub-section (v), (v-A) or
(v-B) of this section as the case may be:

[Provided further that in all suits
falling under Clause (a), such amount shall
in no case be less than Rs. 300]:

[Provided (also), that in suits
falling under Clause (b) such amount shall
be the approximate sum due to the plaintiff
and the said sum shall form the basis for
calculating (or determining) the valuation
of an appeal from a preliminary decree
passed in the suit.

For cancellation or adjudging
void instruments and decrees.?(iv-A) In
suits for or involving cancellation of or
adjudging void or voidable a decree for
money or other property having a market
value, or an instrument securing money or
other property having such value:
142 INDIAN LAW REPORTS ALLAHABAD SERIES

(1) where the plaintiff or his
predecessor-in-title was a party to the
decree or the instrument, according to the
value of the subject-matter, and

(2) where he or his predecessorin-title was not a party to the decree or
instrument, according to one-fifth of the
value of the subject-matter, and such value
shall be deemed to be?

if the while decree or instrument
is involved in the suit, the amount for which
or value of the property in respect of which
the decree was passed or the instrument
executed, and if only a part of the decree or
instrument is involved in the suit, the
amount or value of the property to which
such part relates.

Explanation.--'The value of the
property' for the purposes of this subsection, shall be the market-value, which in
the case of immovable property shall be
deemed to be the value as computed in
accordance with sub-section (v), (v-A) or
(v-B) as the case may be.

For easement.-(iv-B) In suits-(a)
for a right to some benefit (not herein
otherwise provided for) to arise out of
land;

For an injunction-(b) to obtain an
injunction;

To establish an adoption- (c) to
establish an adoption or to obtain a
declaration that an alleged adoption is
valid;

To set aside an adoption-(d) to
set aside an adoption or to obtain a
declaration that an alleged adoption in
invalid or never, in fact, took place;

To set aside an award other than
awards mentioned in section 8--

(e) to set aside an award not
being an award mentioned in section 8;
according to the amount at which the relief
sought is valued in the plaint;

[Provided that such amount shall
not be less than one-fifth of the market
value of the property involved in or effected
by the relief sought or Rs. 200 whichever is
greater:

Provided further that in the case
of suits falling under Clauses (a) and (b)
the amount of Court fee leviable shall in no
case exceed Rs. 500]

Explanation 1.--When the relief
sought is with reference to any immovable
property the market-value of such property
shall be deemed to be the value computed
in accordance with sub-section (v) and (vA) or (v-B) of this section, as the case may
be.

Explanation 2.--In the case of
suits?

(i) falling under Clauses (a) and
(b), the property which is affected by the
relief sought, and where properties of both
the plaintiff and defendant are affect, the
property of the plaintiff so affected;

(ii) falling under Clauses (c) and
(d), the property to which title by
succession or otherwise may be delivered
or affected by the alleged adoption; and

(iii) falling under Clause (e), the
property which forms the subject-matter of
the award;

shall be be deemed to be the
property involved in or affected by the
relief sought within the meaning of the
proviso to this sub-section."

14. From a perusal of aforesaid
provision, it is evident that computation of
Court
fee
payable
in
certain
suits
particularly with regard to declaratory
decree with consequential relief is indicated
in Section 7(iv)(a) whereunder provisions
of sub-section(iv-A) is an exception. The
proviso to aforesaid provisions indicates
that in cases of suits falling under Clause
(a) where relief sought is with reference to
4 All. Ansar Nawaz Khan Vs. Adeel Ahmad & Ors.
143
any immoveable property, such amount
shall be the value of consequential relief
and if such relief is incapable of valuation,
then the value of immoveable property is to
be computed in accordance with SubSection (v-A) or (v-B) of the Section.

15.

The
provisions
regarding
cancellation or adjudging void instruments
and decrees has been indicated in Section
7(iv-A) of the Act, which has been
exempted for consideration for purposes of
Court fees pertaining to Section 7(iv)(a).

16. Proviso to section 7(iv-B)(e)
provides that in cases of suits following
under clauses (a) and (b), the amount of
Court fee leviable shall in no case exceed
Rs.500/-. Section 7 (iv-B) provides also
that with regard to consequential relief of
injunction, the amount of Court fee leviable
in no case shall exceed Rs.300/-.

17. The aspect of matter with regard
to Court fees payable for the purposes of
relief sought in a plaint for declaration with
consequential
relief
of
permanent
injunction has been considered by Division
Bench of this Court in the case of Basant
Kumar Mata Nehliya (supra) in the
following manner:-

"6. A plain reading of relevant
portion reproduced (supra) shows that so
far as the injunction is concerned, Court
fee shall not exceed Rs. 500/-. Similarly, in
case a suit is filed to obtain a declaratory
decree or order, where consequential relief
other than the relief specified in subsection (iv-A) is prayed, then for the
occupant of the property, the Court fee
shall be paid to the amount on which relief
sought
is
valued
in
the
plaint
or
memorandum of appeal. However, in case,
the suit is filed for cancellation or
adjudging void instrument and decrees,
then Court fee shall be assessed on the face
of market value of the property keeping in
view the explanation given in the section.

7. It is settled law that it is for the
plaintiff to pay Court fees in terms of the
relief sought in the plaint and ordinarily
such valuation for the purpose of Court fee
and jurisdiction ordinarily has to be
accepted vide S. Rm. Ar. S. Sp. Sathappa
Chettiar v. S. Rm. Ar. Rm. Ramanathan
Chettiar [AIR 1958 SC 245.],Tara Devi v.
Sri
Thakur Radha
Krishna Maharaj
through Sebaits Chandeshwar Prasad and
Meshwar Prasad[(1987) 4 SCC 69.].

10. In the present case, the
consequential relief is of injunction for
which the proviso to section (iv-B) provides
that the amount of Court fee leviable shall
in no case exceed Rs. 300/-. To put in other
words, in case the plaintiff is in possession
of the property and files declaratory suit
with prayer for injunction, then the Court
fee leviable shall not exceed Rs. 500/-.

12.The aforesaid proposition also
revealed that from the combined reading of
section 7 (iv-A) or section 7 (iv-B), the
legislature to their wisdom while making
provision for valuation of declaratory
decree with consequential relief under the
proviso of section 7 (iv-a) has consciously
excluded section 7 (iv-A) which provides
imposition of Court fee with regard to the
suit for cancellation or adjudging void
instrument or decree for money or other
property having market value, where the
Court fee shall be assessed on the basis of
market value of such property. In the
present case, so far as relief is concerned,
plaintiff has not made any prayer for
cancellation or setting aside of any
document, deed or revenue record or
sought the delivery of possession. The
proviso of section 7 (iv-B) has not been
144 INDIAN LAW REPORTS ALLAHABAD SERIES
dealt with in the cases referred relied upon
by the parties Counsel."

18. Paragraph 6 of the aforesaid
judgment clearly indicates the fact that in a
suit filed to obtain declaratory decree or
order where consequential relief other than
relief specified in sub-section (iv-A) is
prayed for with relief for permanent
injunction, then the Court fees is to be
assessed as per the valuation indicated in
the plaint. As such, the Division Bench has
come to a conclusion that in such cases that
possession of property is not sought as a
consequential relief, the declaratory suit
filed with prayer for injunction, Court fee
leviable shall not exceed Rs.500/-.

19. The Division Bench in terms has
placed reliance on Full Bench of this Court
in the case of Chief Inspector of Stamps
versus Laxmi Narain reported in AIR 1958
SC 245 in the following manner:

"11. The Full Bench has been
relied upon by both sides in Chief Inspector
of Stamps v. Laxmi Narain [1970 AIR All
488.] , in which identical situation has been
dealt with. Para 22 of the judgment is
reproduced as under:

"In suit No. 12 of 1960, the reliefs
prayed for were a declaration that the first
plaintiff was the Mahant of the Math and
the Sarbarakar of the deity and the
properties of the Math and an injunction
restraining the defendants from interfering
with the possession of the first plaintiff over
the properties as Mahant and Sarbarakar.
The relief of injunction flowed directly from
the right which the plaintiff desired to be
declared and is a consequential relief. This
suit is also, therefore, covered by subsection (iv)(a)."

20. The aforesaid aspect has also been
considered by Hon'ble the Supreme Court
in the case of Suhrid Singh v. Randhir
Singh and others reported in (2010)12
SCC 112 in the following terms:

"7.Where the executant of a deed
wants it to be annulled, he has to seek
cancellation of the deed. But if a nonexecutant seeks annulment of a deed, he
has to seek a declaration that the deed is
invalid, or non est, or illegal or that it is
not binding on him. The difference between
a prayer for cancellation and declaration
in regard to a deed of transfer/conveyance,
can be brought out by the following
illustration relating to A and B, two
brothers. A executes a sale deed in favour
of C. Subsequently A wants to avoid the
sale. A has to sue for cancellation of the
deed. On the other hand, if B, who is not
the executant of the deed, wants to avoid it,
he has to sue for a declaration that the
deed executed by A is invalid/void and non
est/illegal and he is not bound by it. In
essence both may be suing to have the deed
set aside or declared as non-binding. But
the form is different and Court fee is also
different. If A, the executant of the deed,
seeks cancellation of the deed, he has to
pay ad valorem Court fee on the
consideration stated in the sale deed. If B,
who is a non- executant, is in possession
and sues for a declaration that the deed is
null or void and does not bind him or his
share, he has to merely pay a fixed Court
fee of Rs. 19.50 under Article 17(iii) of the
Second Schedule of the Act. But if B, a non-
executant, is not in possession, and he
seeks not only a declaration that the sale
deed is invalid, but also the consequential
relief of possession, he has to pay an ad
valorem Court fee as provided under
Section
7(iv)(c)
of
the
Act.
4 All. Dev Raj Vs. Smt. Rukmani Devi
145

8. Section 7(iv)(c) provides that
in suits for a declaratory decree with
consequential relief, the Court fee shall be
computed according to the amount at
which the relief sought is valued in the
plaint. The proviso thereto makes it clear
that where the suit for declaratory decree
with consequential relief is with reference
to any property, such valuation shall not be
less than the value of the property
calculated in the manner provided for by
clause (v) of Section 7."

21. Upon applicability of aforesaid
judgments
in
the
present
facts
and
circumstances of the case, it is evident that
suit for declaratory decree has been filed
with consequential relief of only permanent
injunction and not for possession. In such
circumstances,
Court
fees
would
be
payable in terms of Section 7(iv-a) of the
Act and not in terms of Section 7(iv-A) of
the Act and therefore only a fixed Court fee
of Rs.500/- was payable by the revisionist.
The Tribunal has clearly erred in holding
ad valorem Court fee being payable by the
revisionist. It is also a relevant factor that it
can not be assumed that a relief of
possession is to be sought for by the
plaintiff particularly when no such express
relief has been sought in the plaint. The
aforesaid judgments clearly indicate that
Court fee is payable only as per relief
sought in a plaint and not for what it ought
to have prayed for.

22. Learned counsel for opposite
parties has placed reliance on judgment
rendered in the case of Dr. Sushil Suri
(supra) but upon a perusal of same, it is
evident that nothing contrary has been laid
down in the aforesaid judgment, which in
itself is based on judgment rendered by
Supreme Court in the case of Suhrid Singh
(supra) whereby also it has been held that
ad valorem Court fees in such matter is not
paid.

23. Considering aforesaid facts and
the aforesaid judgments, it is apparent that
the impugned order dated 17.11.2022
passed by the Waqf Tribunal in case no.38
of 2020; Ansar Nawaz Khan versus
Tashkeel Ahmad & others is against the
propositions of law and is therefore set
aside.

24. Consequently, revision succeeds
and is allowed. Parties to bear their own
costs.

25. Learned counsel for answering
opposite
parties
submits
that
even
otherwise the suit was not maintainable in
view of the fact that the plaintiff has not
disclosed his locus standi as a Mutwali to
maintain the suit and the value of property
has not been disclosed.

26. With regard to aforesaid
submissions, it is apparent that issue
with regard to maintainability of suit is
not the subject matter of the present
proceedings and for which purpose
opposite party as defendant have a right
to file objections before the Tribunal
concerned.
----------
(2023) 4 ILRA 145
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.12.2022

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Civil Revision No. 104 of 2001

Dev Raj ...Defendant-Applicant-Revisionist
Versus
Smt. Rukmani Devi ...Plaintiff-Respondent