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1964 DIGILAW 255 (KER)

APPIKUNJU MEERASAYU v. MEERAN PILLAI

1964-09-14

C.A.VAIDIALINGAM

body1964
Judgment :- 1. In this revision Mr. K. S. Paripoornan learned counsel for the plaintiff challenges the order of the learned Subordinate Judge, Attingal directing the plaintiff to state the value of the property which is the subject of the suit and to pay the necessary court-fees under S.40 (1) of the Kerala Court fees Act. The plaintiff purchased the property in question on 27101952 from the second defendant for a sum of Rs. 15,000'-. 2. The first defendant instituted O. S.21/1125, Munsiffs Court, Nedumangad against the second defendant for recovery of possession of the properties. Notwithstanding that the suit appears to have been dismissed for default in the first instance on 19121952, the first defendant filed an application in that suit for restoration which again was dismissed on 18 81953. But the first defendant appears to have filed a second application for restoring the suit which had been dismissed for default. But in respect of that proceeding it is seen that the second defendant appears to have been exparte and ultimately the suit itself was directed to be restored and decreed in favour of the first defendant on 111155 against the present second defendant who was exparte. As in the mean while, the plaintiff had purchased the property on 2710 52 and as he apprehended that the decree in O. S.21/1125 may hurt his rights, he instituted the present suit O. S.3/62, Sub-Court Attingal for a declaration that the decree obtained in O. S.21/1125 does not bind him and also has asked for a further relief by way of setting aside the decree in 0. S.211125. 3. So far as this relief of declaration is concerned it is seen that he has valued that relief at Rs. 300/- under S.25 (d)(ii) of the Kerala Court Fees Act and paid appropriate court fees and there is no controversy regarding that aspect. But so far as the relief for cancellation of the decree in O. S.211125 is concerned it is also seen that the plaintiff valued that relief only on the amount specified for purposes of claiming relief in O.S. 211125 & claimed court fees accordingly. But when coming to the jurisdictional value, inasmuch as he has instituted the suit in the Sub Court quite naturally the plaintiff valued the claim for purpose of jurisdiction in the sum of Rs. 15,000/'-. 4. But when coming to the jurisdictional value, inasmuch as he has instituted the suit in the Sub Court quite naturally the plaintiff valued the claim for purpose of jurisdiction in the sum of Rs. 15,000/'-. 4. Objection appears to have been taken by the court fee examiners regarding the valuation given by the plaintiff in respect of the relief for setting aside the decree in O. S.211125. The objection appears to have been that the plaintiff must value that relief not in the sum of Rs. 300/'- shown in O. S.21/1125 but really at the market value of the properties on the date of the suit. 5. The plaintiff no doubt appears to have raised objection to this note put up by the court fee examiners, but the learned Subordinate Judge by his order dated 7th March 1963 has taken the view that the plaintiff seeks a substantial relief by way of cancelling the decree in O. S.21/1125 and for cancellation of such a decree he has to pay court fees under S.40 (1) of the Court Fees Act. Therefore in consequence the learned judge is of the view that court fee has to be paid by the plaintiff on the value of the property in respect of which the decree has been passed. Accordingly the plaintiff has been directed to give the value of the property on the date of the suit for which purpose requiring him to pay the necessary court fees under S.40 (1) of the Kerala Court Fees Act. 6. S.40(1) of the Kerala Court Fees and Suits Valuation Act 1960, Act X of 1960 is as follows: "Suits for cancellation of decrees, etc. (1) Ia a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject-matter of the suit, and such value shall be deemed to be. If the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed. If the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed. If a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property." In particular Mr. K. S. Paripoornan laid considerable emphasis on the provisions contained therein particularly the expressions: "the amount or value of the property for which the decree was passed etc." According to the learned counsel in this case the decree which is sought to be set aside by the plaintiff is the decree in O. S.21/1125 and according to the decree the amount or value of the property for which the said decree has been passed is only a sum of Rs. 300/- as will be seen from the proceedings connected in O. S.21/1125. Therefore, the plaintiff was perfectly justified in adopting that value for the purpose of paying court fees regarding the relief of setting aside the decree. 7. Mr.S. A. Nagendran, learned counsel for the defendant as well as the learned Government Pleader to whom notice has been issued referred to the fact that the emphasis in S.40 (1) of the Court Fees Act is regarding the subject matter of the suit and in this case the subject matter of the suit is admittedly the property covered by the sale-deed in favour of the plaintiff executed by the second defendant on 2710 1952 and the learned counsel also pointed out that in respect of the said subject-matter which is immovable property the amount or value of that property in respect of which the decree in O. S.21/1125 has been passed, must be the value for which at any rate the plaintiff has purchased on 27101952 and therefore both the learned Government Pleader and Mr. S. A. Nagendran urged that advalorem court fees will have to be paid by the plaintiff as required by the court-fee examiners and accepted by the learned judge. 8. In this connection Mr. S. A. Nagendran learned counsel for the defendant has drawn my attention to the judgment of the learned Chief Justice and Mr. Justice Viswanatha Sastri reported in Narasamma v. Satyanarayana (AIR. 8. In this connection Mr. S. A. Nagendran learned counsel for the defendant has drawn my attention to the judgment of the learned Chief Justice and Mr. Justice Viswanatha Sastri reported in Narasamma v. Satyanarayana (AIR. 1951 Madras 793) where the learned judges had to consider more or less an analogous provision contained in the Madras Court Fees Act namely S, 7 (4) (A). In considering the scope of that provision the learned judges have held that a party seeking to cancel or to have a decree passed in respect of immovable property set aside must pay advalorem court fee on the market value of the properties comprised therein. 9. I am in respectful agreement with the views expressed by the learned judges in the decision referred to above; and I am not inclined to accept the contention of Mr. K. S. Paripoornan that the provisions contained in S.40 (1) of the Kerala Court Fees Act will be satisfied by his client adopting the value of the Rs. 300- given in O. S.21/1125 when the plaintiff seeks to have the decree in that suit set aside. 10. As I have pointed out earlier, the emphasis in S.40 (1) of the Court Fees Act is regarding the subject matter of this suit and in respect of that subject matter which admittedly is immovable property it will have to be valued on the amount or valued as the property which was no doubt covered by the decree in 0. S.21/1125. But the value or amount must certainly be the market value as on the date of the filing of the suit. 11. In this case it is seen that the plaintiff himself has given the jurisdiction value at Rs. 15,000/- and in the decision rendered by me and reported in Joseph v. Joseph (1964 KLT. 798) I have held that the jurisdiction value given by a party ordinarily governed reliefs prayed by him in that litigation for purposes of court fees also unless the question of payment of fixed court fees in particular circumstances is separately prayed for irrespective of the jurisdictional value. 12. Therefore in this case the value of the property in respect of which the plaintiff seeks cancellation of the decree in O. S.211125 will be taken as Rs. 15,000/- being the purchase price paid by the plaintiff under the sale executed in his favour by the second defendant. 12. Therefore in this case the value of the property in respect of which the plaintiff seeks cancellation of the decree in O. S.211125 will be taken as Rs. 15,000/- being the purchase price paid by the plaintiff under the sale executed in his favour by the second defendant. On that basis the plaintiff is given six weeks' time from now to file a statement in the lower court giving this valuation and also pay the additional court fees that may be necessary in consequence of this revised valuation within the same time. 13. Subject to these directions CRP. is dismissed. Parties will bear their own costs.