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2008 DIGILAW 4080 (MAD)

A. Murugesan v. Satheeshkumar & Others

2008-11-07

M.VENUGOPAL

body2008
Judgment :- The civil revision petitioner/first respondent/ plaintiff has preferred the civil revision petition aggrieved against the order dated 012. 2007 in I.A.No.783 of 2007 in O.S.No.228 of 2004 passed by the learned District Munsif cum Judicial Magistrate, Paramathy in allowing the application filed by the respondents 1 and 2/defendants 3 and 4/petitioners under Section 12(2) of Tamil Nadu Court Fees and Suits Valuation Act, 1955 and Order VII Rule 11(b) and Section 151 of Civil Procedure Code by directing the revision petitioner/first respondent/plaintiff to value the Plaint as per Section 40(1) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. 2. The trial Court, while passing orders in I.A.No.783 of 2007, has inter alia observed that when the revision petitioner/plaintiff prays for a declaratory relief in respect of the suit property and a consequent relief of permanent injunction, then the plaintiff has to value the plaint as per Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 and accordingly, the revision petitioner/plaintiff has to take steps for amending the plaint and resultantly, allowed the application. 3. The respondents 1 and 2/defendants 3 and 4 as petitioners in I.A.No.783 of 2007 have inter alia averred that admittedly on 110. 1999 the first defendant (in the suit) as the general power of attorney agent of the revision petitioner/plaintiff has executed the sale deed in favour of the second defendant as per the general power of attorney deed dated 13. 1999 in favour of the first defendant by the revision petitioner/plaintiff as per the sale agreement entered into between the revision petitioner/plaintiff and their mother deceased second defendant and the revision petitioner/plaintiff has not strangely disputed the sale agreement dated 13. 1999 and there is no prayer to set aside the sale agreement and as such, the first defendant as a general power of attorney agent of the revision petitioner /plaintiff has executed the sale deed in favour of the deceased second defendant as per the agreement entered into by the revision petitioner/plaintiff in favour of their mother deceased second defendant and therefore, the sale deed dated 110. 1999 in favour of their mother is binding on the revision petitioner/plaintiff and that the revision petitioner/plaintiff should have filed the suit for the relief of declaration to set aside the sale in favour of their mother and paid the Court fees as per Section 40(1) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 and that the revision petitioner/plaintiff has valued the suit under Section 25(b) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 as if he is in possession and the same is defective and as per Section 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955, the issue pertaining to determination of Court fee has to be raised before evidence is recorded on the merits of the claim and hence, pray for allowing the application giving direction to the revision petitioner/plaintiff to amend the plaint and value the same under Section 40(1) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 and pay the necessary Court fees. 4. The revision petitioner/first respondent/plaintiff has filed a counter among other things mentioning that the revision petitioner/plaintiffs contention in the suit is that the alleged sale agreement in favour of the second defendant and the alleged power of attorney dated 15.03.1999 are sham and nominal and resultantly, the alleged sale deed 110. 1999 is also a sham and nominal one and all the above documents have not been acted upon and has not come into effect and therefore, the question of setting aside those documents do not arise and further that an issue in regard to the payment of Court fees can be framed and that the application has been projected with a view to delay the proceedings and therefore, prays for dismissal of the same. 5. 5. The learned counsel for the revision petitioner/ plaintiff submits that the order of the trial Court passed in I.A.No.783 of 2007 directing the revision petitioner/ plaintiff to value the suit under Section 40(1) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 is unsustainable in law and that the trial Court has not appreciated the fact that the revision petitioner/plaintiff borrowed money from the defendants 1 and 2 who are his close relatives and only as a security, the revision petitioner/ plaintiff has executed a power of attorney deed in favour of the first defendant and a sale agreement in favour of the second defendant which are misused by the defendants 1 and 2 for the purpose of executing the sale deed by the first defendant in favour of the second defendant and further that the trial Court has failed to consider the plea of the revision petitioner/plaintiff that he has executed five unfilled promissory note forms and two sets of blank stamp papers while obtaining the loans from defendants 1 and 2 and that the trial Court has considered the decision of this Court in Chellakannu V. Kolanji (2006) 4 M.L.J. 285 in a wrong perspective to the facts of the present case and therefore, prays for allowing the revision in the interest of justice. 6. The learned counsel for the revision petitioner/ plaintiff contends that the revision petitioner/plaintiff is not a party to the sale deed and therefore, the relief sought for by him in the plaint will not attract Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 and that the Court fee paid by the revision petitioner/ plaintiff already in the plaint for the relief of declaration of title of suit properties etc. is correct in law and in support of his contention, he relies on the decision in K.Palanisamy and another V. S.B.Subramani and another (20070 1 M.L.J. 645 wherein this Court has held that when the plaintiff is not a party to the sale deeds, the relief sought for would not come within the ambit of Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. 7. 7. Per contra, the learned counsel for the respondents 1 and 2 contends that whether the cancellation is formally prayed for or not in the plaint it is impliedly asked for and therefore, when the revision petitioner/plaintiff has sought a declaration in regard to the title of properties, then the substance of the suit is one for cancellation and therefore, Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 will come into operative play. To lend support for his said proposition, the learned counsel for the respondents 1 and 2 presses into service the decision Chellakannu V. Kolanji (2006) 4 M.L.J. 285 wherein this Court has inter alia held that the plaintiff might seek to avoid the sale deeds if he is not a party to the sale deeds. But, since the plaintiff himself is a party to the sale deeds, before he is suing for any relief, the plaintiff must first obtain the cancellation of the sale deeds and hence, Court-fee is to be paid under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. 8. It is to be borne in mind that the term cancellation means that a party initiating a civil action must be a party to a decree or a document and that strangers are not bound by the document or decree and are not obligated to sue for cancellation. Admittedly, a plaintiff cannot be allowed to evade payment of proper court fee by omitting to ask for a relief when the success of his suit revolves upon the relief being given to him, therefore, to arrive at a decision in regard to the particular Section under which the suit falls for the purpose of Court fee the entire substance of the relief mentioned in the plaint to be taken in toto and one should not look into the prayer for which the relief is couched. In short, the averments in the plaint that prima facie determines the Court fee to be paid by a party. In short, the averments in the plaint that prima facie determines the Court fee to be paid by a party. In this connection, this Court aptly points out the decision in In re, Thirupathiammal AIR 1956 Madras at page 179, this Court has observed as follows: "The plaintiff brought a suit for declaration of his title to certain lands and for possession and mesne profits on the allegation that a sale-deed executed by defendant 2, his son, in favour of defendant 1 was fictitious transaction. This plaintiff paid court fee under S.7 (v)(b) on ten times the annual revenue. Held that the plaintiff not being a party to the above sale deed and the plaint allegations being to the effect that the said sale deed is a sham transaction, the plaintiff need not pray for cancellation of the document. Prima facie third parties are not bound by a document of the description in question and are not obliged to sue for cancellation. They can ignore the document and ask for the appropriate relief that they may be entitled to on that footing and pay the proper court-fee thereon without asking cancellation. Case law Ref. (Paras 8,9) Anno:AIR Com. Court-fees Act. 7(iv)(c) N.3, 5." 9. Further, this Court also points out the decision in Sathappa Chettiar V. In re (1954) 2 M.L.J. at page 400, it is inter alia held that in a decree against father-manager -Other coparceners who are not parties to suit are not bound to sue to set aside the decree. Moreover, where a purchaser of a property files a suit for declaration that an equitable mortgage created by his vendor was not binding on him, he is entitled to pay Court fee under Section 25 (d) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 and is not liable to pay Court fee under Section 40 for cancellation of the equitable mortgage as he was not a party to the mortgage as per decision (1964) 1 M.L.J. at page 52. 10. As far as the present case is concerned, the case of the revision petitioner/plaintiff is that he has been perforced to cancel the power of attorney deed executed by him on 110. 10. As far as the present case is concerned, the case of the revision petitioner/plaintiff is that he has been perforced to cancel the power of attorney deed executed by him on 110. 1999 by means of cancellation deed and further that the first defendant after knowing about the cancellation of power in his favour has created a false document viz., a purported sale deed in regard to the suit properties in favour of the deceased second defendant on 110. 1999 etc. Thus, it is clear that the revision petitioner/plaintiff is not a party to the sale deed in question and therefore, he is a stranger and not bound by the sale deed and in that view of the matter, he need not initiate action for cancellation of the document, in the considered opinion of this Court. Therefore, looking into the nature of relief sought for by the revision petitioner/ plaintiff to the effect that he has only sought a declaratory relief in regard to the title of the suit properties in his favour etc., this Court comes to the inevitable conclusion that the relief sought for is not coming within the four corners of Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 and accordingly, the revision petitioner/plaintiff need not pay Court fee under Section 40 of the Court Fees Act and resultantly, allows the civil revision petition to prevent aberration of justice. 11. In the result, the Civil Revision Petition is allowed, leaving the parties to bear their own costs. The order passed by the trial Court is set aside for the reasons assigned by this Court in this revision and I.A.No.783 of 2007 is dismissed. Consequently, connected miscellaneous petition is closed.