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2011 DIGILAW 599 (MAD)

G. Seethadevi v. R. Govindaraj

2011-02-04

K.VENKATARAMAN

body2011
JUDGMENT :- 1. The present revision is directed against the order of the learned District Munsif, Tiruppur dated 05.10.2009 made in unnumbered O.S. on its file. 2. The petitioner herein is the plaintiff in the above referred suit and the defendants thereon are the respondents. 3. The petitioner has filed the abovesaid suit against the respondent for declaration that the sale deed dated 25.04.2008 said to have been executed by him through his power agent is null and void and not binding on him and for permanent injunction restraining the respondents from in any manner altering the physical features of the suit property. The court below directed the petitioner to pay the court fee as required under Section 40 of the Court Fee Act. Challenging the same, the petitioner has come up with the present civil revision petition. 4. The learned counsel for the petitioner contended that it is the case of the petitioner that she never executed a Power of Attorney in favour of one Bhaskaran in respect of the suit property. It is further stated in the plaint that the said Bhaskaran is unknown to the petitioner and he is an employee of the first respondent in the petrol bunk. Thus, it is stated in the plaint that the petitioner has not executed any Power of Attorney and the sale deed executed by the Power of Attorney on behalf of the petitioner is not valid. In such circumstances, the question that arises for consideration is whether the petitioner has to pay the court fee under section 25(d) or under section 40 of the Tamilnadu Court Fees and Suits Valuation Act, 1955. The learned counsel for the petitioner relied on the decision reported in 2006 (5) CTC 255 , (SIDDHA CONSTRUCTION (P) LTD. V. M.SHANMUGAM), wherein this Court has held that 'a suit for declaration that a particular sale deed is null and void could be valued only under section 25(d) of the Tamil Nadu Court Fees and Suit Valuation Act if on plaint averments it is found that the plaintiff was not party to such sale deed. 5. On the other hand, the learned counsel for the respondents relied on the decision reported in 2009 (4) L.W. 650 , (M.ABDUL MUTHALIP Vs. 5. On the other hand, the learned counsel for the respondents relied on the decision reported in 2009 (4) L.W. 650 , (M.ABDUL MUTHALIP Vs. M.SAMSUDEEN) and contended that in the said decision, it has been held that when the sale deed has been executed through Power of Attorney and when the Power of Attorney is admitted the suit has to be valued only under section 40 of the Act and not under section 25(a) of the Act. 6. I have carefully gone through the submissions made by the learned counsel for the petitioner as well as the learned counsel for the respondents. 7. In the case on hand, it is to be seen that the case of the petitioner is that she has not executed Power of Attorney in favour of one Bhaskaran so as to execute the sale deed in favour of third parties. That apart, it is contended that the said Bhaskaran is unknown to the petitioner and he is an employee of the first respondent in his petrol bunk. When such statement has been made in the plaint, the court fee that has to be payable on the relief that has been sought for by the petitioner viz., for declaration that the sale deed dated 25.04.2008 is null and void and not binding on the petitioner, under section 25(d) of the Act and not under Section 40 of the Act. The petitioner has not admitted the execution of Power of Attorney. The court below is not justified in directing the petitioner to pay the court fee under section 40 of the Act. In the case relied on by the respondents, the Power of Attorney was admitted by the respondents/plaintiffs therein and hence, this Court in the said decision has directed the party to pay the Court Fee under section 40 of the Act. 8. In view of the above stated position, I am of the considered view that the order of the court below directing the petitioner to pay the court fee under section 40 of the Act is liable to be set aside and accordingly, set aside. The civil revision petition stands allowed. No costs.