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2010 DIGILAW 438 (KAR)

GURU PRASAD v. S. A. RUDRARADHYA

2010-04-01

SUBHASH B.ADI

body2010
ORDER Defendants 2, 3 and 5 have filed all these writ petitions. The first respondents in all these writ petitions have filed separate suits before the Trial Court. However, the reliefs claimed by the 1st respondents in all the suits are as under: "(a) Declare that the registered GPA dated 3-7-1995 and 15-9-1995 in respect of suit schedule properties are null and void and the same are not binding on the plaintiffs; (b) Declare that the sale deed dated 30-7-2004 in respect of suit schedule properties are null and void and not binding on the plaintiffs; (c) Restrain them, their agents, servants or anybody claiming through or under them in any manner from interfering with the plaintiffs' peaceful possession and enjoyment of suit schedule properties by granting an order of permanent injunction". 2. The prayers in all these suits filed by the 1st respondents are identical. In this regard, the plaintiffs treated the suit schedule properties as agricultural lands and initially valued the suit under Section 24(d) of the Karnataka Court Fees and Suits Valuation Act, 1958 (for short, 'the Act') and paid Court fee of Rs. 75/-. Defendants filed their written statement, apart from denying the plaintiffs claim they also questioned the valuation and the Court fees paid by the plaintiff. As a result, a question arose as regards calculation of Court fee for the relief sought in the suits. In this regard, an application for direction to pay proper Court fee was also filed, inter alia alleging that the suits are one for cancellation of decrees and they fall under Section 38 of the Act and market value has to be determined as on the date of suit and also under Section 26(a) of the Act. In this regard, the Trial Court had directed the office to determine proper Court fee. On determination of Court fee, the plaintiffs have paid Court fee of Rs. 87,125/- under Section 24(d) of the Act. Thereafter, the Trial Court framed issues and issue 3 in O.S. Nos. 1336 of 2006 and 1335 of 2006 and issue 4 in O.S. No. 1337 of 2006 was "whether defendants 2, 4, 5 prove that the Court fee paid by the plaintiff is insufficient?" 3. 87,125/- under Section 24(d) of the Act. Thereafter, the Trial Court framed issues and issue 3 in O.S. Nos. 1336 of 2006 and 1335 of 2006 and issue 4 in O.S. No. 1337 of 2006 was "whether defendants 2, 4, 5 prove that the Court fee paid by the plaintiff is insufficient?" 3. This issue was treated as a preliminary issue and by the impugned order and the Trial Court held that the Court fee paid by the plaintiffs is sufficient, as against which these writ petitions are filed. 4. The learned Counsel for petitioners/defendants 2, 3 and 5 submitted that the Act is a fiscal statute and it has to be construed strictly. If the substance of relief sought falls under a particular provision of the Act, it cannot be brought under general provision under Section 24(d) of the Act. In this regard, he submitted that, Section 38 of the Act applies and submitted that the prayer sought for by the petitioners is for declaration of registered Powers of Attorney dated 3-7-1995 and 15-9-1995 are null and void and declaration of sale deed dated 30-7-2004 as not binding and null and void. The sale deed executed by the Powers of Attorney of plaintiffs, seeking declaration that the deeds are not binding on them amounts to cancellation of sale deed. The parties to the transaction are seeking declaration, which is nothing but cancellation of sale deed as well as General Powers of Attorney and it squarely falls under Section 38 of the Act and further it also falls under Section 26(a) of the Act. Section 38 of the Act requires Court fee on market value as on the date of suit and for the purpose of market value that the value of the property. The Trial Court without even referring to Section 38 of the Act, without verifying the actual market value as on the date of suit, erroneously accepted the Court fee paid by the plaintiffs as sufficient. The said calculation of Court fee is based on the consideration amount paid in the sale deed i.e., Rs. 15,00,000/-. 5. The learned Counsel for petitioners submits that the alleged sale deed is dated 30-7-2004, whereas the suits are filed in the year 2006. The Court fee to be paid is based on the value as on the date of suit and not as on the date of transaction. 6. 15,00,000/-. 5. The learned Counsel for petitioners submits that the alleged sale deed is dated 30-7-2004, whereas the suits are filed in the year 2006. The Court fee to be paid is based on the value as on the date of suit and not as on the date of transaction. 6. On the other hand, learned Counsel for respondents submits that, the suits are not for cancellation of sale deed as the suits are one for declaration of registered General Powers of Attorney, alleged to have been executed by the plaintiffs are not binding and the sale deed executed by the Powers of Attorney is not binding. In this regard, he submitted that a specific averment is made in the plaints that the plaintiffs have not executed Powers of Attorney and the sale deed if any executed by such persons is not binding on them and it will not fall under Section 38 of the Act and it would fall under Section 24(d) of the Act as there is no specific provision for seeking declaration of such nature. 7. He further submitted that Court fee has been calculated on the basis of consideration under the sale deed and proper Court fee has been paid. 8. Reading of prayers clearly indicate that the plaintiffs are seeking cancellation of registered Powers of Attorney. It is not in dispute that the sale deed has been executed by the alleged Powers of Attorney and same is executed on behalf of the plaintiffs. If it is so, whether the plaintiffs executed Powers of Attorney to execute the registered sale deed or not is a matter to be gone into trial. However, the suits clearly indicate that the plaintiffs are seeking declaration that the sale deed executed by their alleged Powers of Attorney is not binding on them. The nomenclature or nature may be different. The effect of such declaration amounts to cancellation of sale deed as against the plaintiffs are concerned. In my opinion, the relief sought for by the plaintiffs clearly falls under Section 38 of the Act, as the plaintiffs themselves want to get rid of the sale deed and Powers of Attorney. If the suits fall under Section 38 of the Act, Section 38 requires Court fee to be paid on the value of the subject-matter as on the date of suit. If the suits fall under Section 38 of the Act, Section 38 requires Court fee to be paid on the value of the subject-matter as on the date of suit. Admittedly, the Trial Court has not considered the valuation of subject-matter of suit as on the date of suit but has considered the same on the basis of sale deed of the year 2004. 9. Further, the Trial Court while considering the matter as regards payment of Court fee, must apply its mind to the nature of relief sought for. If there is specific provision under the Act for the purpose of Court fee, it will not come under General provision. The relief sought for in the suits and the averments of the plaints clearly indicate that the relief sought is against the registered sale deed. The effect is one and the same. In view of the same, the issue as decided by the Trial Court is not in consonance with the provisions of Sections 38 and 26(a) of the Act. 10. As regards valuation is concerned, the learned Counsel for defendants submitted that valuation must be as per the guidelines issued by the Sub-Registrar's Office. Whereas the learned Counsel for plaintiffs submitted that the guidelines are not absolute evidence for the purpose of determination of valuation and submitted that it all depends on the nature of property, its location and the purpose for which it is used and its market value has to be considered on the basis of relevant materials. Actual valuation of the property has to be determined by the Trial Court. No doubt, the guidelines may be piece of guidelines and that would not be conclusive valuation and ultimately parties will have to adduce material to the satisfaction of the Trial Court. The guideline valuation is only a guideline. In the circumstances, I find that the order impugned requires reconsideration. 11. Accordingly, the writ petitions are allowed: (a) The impugned order is quashed. (b) The matters are remanded to the Trial Court with a direction to reconsider issue 3 in O.S. Nos. The guideline valuation is only a guideline. In the circumstances, I find that the order impugned requires reconsideration. 11. Accordingly, the writ petitions are allowed: (a) The impugned order is quashed. (b) The matters are remanded to the Trial Court with a direction to reconsider issue 3 in O.S. Nos. 1336 of 2006 and 1335 of 2006 and issue 4in O.S. No. 1337 of 2006 on the basis of material and evidence produced by the parties to the satisfaction of the Trial Court, as regards market value of the subject-matter as on the date of suit and the Trial Court shall determine correct Court fee payable in the suits. Sri H. Hanumantharayappa, learned High Court Government Pleader is permitted to file memo of appearance for the respondent-State within four weeks from today.