Research › Search › Judgment

Madras High Court · body

2010 DIGILAW 3021 (MAD)

T. R. Sengottaiyan v. M. L. Sengottuvelappan

2010-07-22

K.MOHAN RAM

body2010
Judgment :- 1. The Plaintiffs in O.S.No.27 of 2008 on the file of the II additional District Munsif Court, Bhavani, are the Petitioners in the above Civil Revision Petition. 2. Initially the Petitioners filed the said Suit seeking for a decree of permanent injunction and the Suit was filed on 23.1.2008. The case of the Petitioners is that the Petitioners have executed a Power of Attorney in favour of the Second Defendant on 24.1.2003.On 24.1.2003 itself the Petitioners executed a registered Sale Agreement in favour of Third Defendant. On 31.10.2006, the Power of Attorney Deed was cancelled by a registered instrument and the same was also informed to the Second Defended. Though the Power of Attorney had been cancelled, the Defendants 2 and 3 jointly executed a Sale Deed in favour of the First Defendant in respect of the suit properties on 5.11.2007. Though all these facts have stated in the Plaint, as a matter of abundant caution, the Petitioners wanted to amend the Plaint to include the prayer for declaration, that the Sale Deed executed by Defendants 2 and 3 on 5.11.2007 is null and void and is not binding on the Petitioners. Therefore, they filed I.A.No.4 of 2010 to amed the Plaint to include the prayer for declaration. The said amendment was opposed by the Respondent. 3. On consideration of the rival submission, the Court below though found that the amendment is necessary, but rejected the Petition on the ground of non-payment of Court fees under Section 25(b) of the Court Fee Act. Being aggrieved by that, the above Civil Revision Petition has been filed. 4. Heard both. 5. Mr.N.Manokaran, learned Counsel for the Petitioners submitted that well prior to the execution of the Sale Deed, the Petitioners have cancelled the power given to the Second Respondent herein dated 24.1.2003, which was registered on the file of Bhavani Sub-Registrar’s office as document No.28 of 2003. The cancellation of the power was also duly informed to the Defendants 2 and 3. But the Defendants 2 and 3, even after cancellation of Power of Attorney, have created sham and nominal in the name of the First Respondent herein. The Sale Deed so brought above was illegal, invalid and void ab-initio in the eye of law. The Petitioners are not parties to the Sale Deed and they need not pray for cancellation of the Sale Deed. The Sale Deed so brought above was illegal, invalid and void ab-initio in the eye of law. The Petitioners are not parties to the Sale Deed and they need not pray for cancellation of the Sale Deed. But it is enough if they seek for a prayer that the Sale Deed is null and void and is not binding on the Petitioners. The Suit has to be valued as per the averment contained in the Plaint and the Court fee paid by the Petitioners is correct. In support of the said contentions, the learned Counsel placed reliance on the following decisions reported in Suhrid Singh @ Sardool Singh v. Randhir Singh and other, 2010 CTJ 470 SC (1); Siddha Construction (P) Ltd., represented by its Power Agent, Anjay Sharman v. M. Shanmugam and other, 2006 (5) CTC 255 : 2006 (4) LW 176 ; A. Murugesan v. Satheeshkumar and another, 2009 (1) TNCJ 93 (Mad); Chellakannu v. Kolanji, 2005 (5) CTC 190. In all the aforesaid decisions, it has been categorically held that where the executant of a deed wants it to be nullified, he has to seek cancellation of the deed; but if a non-executant 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. 6. Countering the said submissions, Mr. P. Valliappan, the learned Counsel for the Respondents submitted that the issue regarding the proper Court fee to be paid by the Plaintiffs can be decided at the time of trial, after the Respondents filed their written statement. At this juncture, the amendment sought for by the Plaintiffs may be allowed and the Court fee as valued by them could be paid. 7. I have considered the aforesaid submissions. 8. At this juncture, the amendment sought for by the Plaintiffs may be allowed and the Court fee as valued by them could be paid. 7. I have considered the aforesaid submissions. 8. For deciding the issue that arises in the above Civil Revision Petition it would be relevant to look into the provisions under Section 12(2) of the Tamil Nadu Court fees and Suits Valuation Act, 1955 (hereinafter called as Act.) Section 12 (2) of the Act read as follows: “12(2) any Defendant may, by his Written Statement field before the first hearing of the Suit or before evidence is recorded on merits of the claim but, subject to the next succeeding sub-section, not later, plead that the subject-matter of the Suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such Defendant, on the merits of the claim. If the Court decides that the subject-matter of the Suit has not been properly valued or that the fee paid is not sufficient, the Court shall fix a date before which the Plaint shall be amended in accordance with the Court’s decision and the deficit fee shall be paid. If the Plaint be not amended or if the deficit fee be not paid within the time allowed, the Plaint shall be rejected and the Court shall pass such order as it deems just regarding costs of the Suit.” 9. A reading of the aforesaid Section makes it clear that the Defendant may, by his Written Statement filed before the first hearing of the Suit or before evidence is recorded on the merits of the claim, but, subject to the next succeeding sub-section, not later, plead that the subject-matter of the Suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such Defendant, on the merits of the claim. Therefore, as per Section, an opportunity should be given to the Defendant to raise his objections in the Written Statement. Only after filing Writing Statement, the issue regarding Court fee payable on the Suit can be decided and that too after recording evidence. Therefore, as per Section, an opportunity should be given to the Defendant to raise his objections in the Written Statement. Only after filing Writing Statement, the issue regarding Court fee payable on the Suit can be decided and that too after recording evidence. Therefore, in the light of the above, this Court not deciding the question as to whether the Court fee paid by the Petitioners on the amended Plaint is correct or not; but the amendment sought for by the Petitioners has to be allowed and accordingly allowed. 10. The Civil Revision Petition is allowed and the order passed by the Court below is set aside with the following directions: It is open to the Respondent herein to file their Written Statement on the amended Plaint and raise whatever defence that are open to them and if the question of Court fee is also raised in the Written Statement, then that issue shall be decided as a preliminary issue. No costs. Consequently, connected Miscellaneous Petition is closed.