Can the court fee question be deferred to the evidence in the suit?

Yes. The payability of court fee depends not only on the possession aspect or the prayer in that regard but also on the aspects relating to the sale deed claimed to have been executed and the other relevant facts, which are issues to be threshed out on evidence. The question is therefore deferred to be considered upon the evidence finally led.

Court Fees Act, 1870 — s.7(iv)(c) — Second Schedule Article 17(iii) — Code of Civil Procedure, 1908 — Order VII Rule 11 — Rejection of plaint — Ad-valorem court fee — Non-executant in joint possession — Code of Civil Procedure, 1908 — Order VII Rule 11 — Rejection of plaint — Plaint averments alone — Held: On an application under Order VII Rule 11, CPC the court has to consider the averments in the plaint only. A plaint cannot be rejected on the basis of allegations made in the written statement of the defendant. (¶5) Court Fees Act, 1870 — s.7(iv)(c) — Second Schedule Article 17(iii) — Non-executant seeking declaration — Held further: A non-executant who is in possession and sues for a declaration that a deed is null or void pays merely the fixed court fee under Article 17(iii). Ad-valorem court fee under Section 7(iv)(c) is attracted only where he is not in possession and also seeks possession. (¶5) Code of Civil Procedure, 1908 — Order VII Rule 11 — Court Fees Act, 1870 — Court fee deferred to evidence — Held further: Where the plaint asserts joint possession, the plaint is not liable to be rejected at the threshold on the court-fee ground. Whether ad valorem or fixed court fee is payable must be decided upon the evidence led in the suit. Appeal allowed. (¶6)

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