' CH. MUHAMMAD MASOOD JAHANGIR, J. --- By filing the instant Constitutional petition the petitioner/defendant has assailed judgment dated 22.12.2009 whereby learned Additional District Judge Faisalabad accepted the revision filed by plaintiff/respondent No. 1 and set aside the order dated 21.2.2009 through which the learned Trial Court required the plaintiff/respondent to affix Court-fee as well as the order dated 17.9.2009 passed by the learned Trial Court through which the review application filed by plaintiff/respondent No. 1 was dismissed.
2. The synopsis of the case are that plaintiff/respondent No. 1 filed a suit for cancellation of document/agreement to sell gated 20.3.2002 regarding the alleged sale of disputed property fully mentioned in the head-note of the plaint which was contested by the petitioner/defendant and on objection raised by petitioner/defendant the plaintiff/respondent No. 1 was required by the learned Trial Court vide order dated 21.2.2009 for affixation of Court-fee on the plaint. The petitioner/plaintiff neither affixed the Court-fee on the plaint as required by the learned Trial Court nor assailed the same by filing any appeal or revision before higher forum rather he moved a review application before the same Court for setting aside the order dated 21.2.2009. The learned Trial Court dismissed the said review application vide order dated 17.9.2009. Both these orders passed by the learned Trial Court were assailed by plaintiff/respondent No. 1 by filing civil revision before the learned lower revisional Court, which has been accepted vide impugned order referred in para-1 ante and assailed through the instant writ petition.
3. Despite service no one appeared on behalf of the respondent No. 1 although power-of-attorney on her behalf by Mr. Abdul Qayyum Sheikh, Advocate whose name is duly reflected in the cause respondent is proceeded ex parte.
4. Arguments of the learned counsel for the petitioner heard and record perused.
5. There was no doubt that in order to determine the proper Court-fee payable on the plaint in a particular suit, the correct principle was that the plaint as a whole should be looked at and that it was the substance of the plaint and not its ostensible form which really mattered. The veil could be pierced through by a searching eye for judging the true substance of the plaint to determine, the taxability of Court-fee on the plaint. There was a difference between a suit for cancellation of a document under Section 39 of the Specific Relief Act and a suit for declaration of title filed under Section 42 of the Specific Relief Act. When a party seeks for the cancellation of document the plaintiff was liable to payment of ad valorem Court-fee on the value of the subject-matter in dispute under Article 1, Schedule 1 of the Court-Fees Act and that valuation was already given in the agreement to sell sought to be cancelled in the suit by the plaintiff. It is settled principle that whenever a plaintiff files a declaratory suit to establish his right in a property and there is document which he must get declared null and void before the relief can be granted it would be a suit for all intents and purposes one for the cancellation of such a document and the Court-fee payable under the Court-Fees Act though filed under the garb of the declaratory suit. In this view of the matter the learned Trial Court rightly required the plaintiff/respondent No. 1 for the affixation of Court-fee as value of the basic agreement dated 20.3.2002 the cancellation whereof is sought is determined at Rs. 840,000/-. The relief for cancellation of document has been sought by the plaintiff/respondent No. 1 under Section 39 of the Specific Relief Act and the possible result would be that in a suit for cancellation of document ad valorem Court-fee is to be paid. The learned Trial Court rightly issued direction to respondent No. 1/plaintiff for the affixation of Court-fee and the review petition filed by the respondent/plaintiff was also dismissed vide order dated 21.2.2009 and 17.9.2009 after due appreciation of law, but the learned lower provisional Court reversed the said orders through the impugned judgment without application of judicial mind, which is illegal, perverse and nullity in the eye of law.
6. The analysis of the above discussion is that the instant writ petition is allowed, the impugned order passed by the learned Additional District Judge is hereby set aside and the orders passed by the learned Trial Court are restored.