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2012 DIGILAW 3885 (MAD)

M. Mani v. P. Latha

2012-09-13

R.S.RAMANATHAN

body2012
Judgment :- 1. The revision petitioner/plaintiff filed the suit in O.S.No.158 of 2009 on the file of the District Munsif Court, Tambaram for declaration that the sale deed dated 5.11.2007 executed in the name of the 1st defendant is null and void and also for permanent injunction. 2. It is stated in the plaint that the plaintiff executed a Power of Attorney in favour of the 2nd defendant on 12.7.2006 and later the power was cancelled on 10.9.2007 under a registered document No.4016 of 2007 and the cancellation power was also informed to the Power Agent namely the 2nd defendant and thereafter the 2nd defendant sold the property to the 1st defendant as if he is the Power Agent of the plaintiff and therefore the suit was filed for the relief prayed for. In that suit the plaintiff valued the relief of declaration under Section 27(c) of the Tamil Nadu Court Fees and Suits Valuation Act at Rs.1000/- 3. The Court fee examiner issued a Check slip stating that the petitioner/ plaintiff is a party to the document which is sought to be cancelled in the suit and therefore the relief of declaration that the sale deed dated 5.11.2007 registered as document No.10162 of 2007 in favour of the 1st defendant has to be valued under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act and the Court fee has to be paid on the value mentioned in the document. The revision petitioner filed objections to the Check slip stating that though the 2nd defendant executed the document as the Power Agent in favour of the 1st defendant, even before the execution of the document by the 2nd defendant, the power was cancelled by the plaintiff under a registered document No.4016 of 2007 dated 10.9.2007 and therefore the plaintiff is not a party to the document which is sought to be cancelled and hence there is no need to value the suit and pay the Court fee under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act and it is open to the plaintiff to notionally value and that has been done in this case. The learned District Munsif, Tambaram rejected the objection of the revision petitioner and directed him to pay the Court fee under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act on the value of the document namely sale deed in favour of the 1st defendant and aggrieved by the same, this revision is filed. 4. The learned counsel for the revision petitioner submitted that the Court below without any basis erred in holding that even though the power was cancelled by the plaintiff, he has not intimated the cancellation of the power to the Sub Registrar or to the 2nd defendant the Power Agent and he has not made any paper publication about the cancellation and therefore the cancellation of power cannot be taken into consideration and the relief has to be valued under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act. He also relied upon the Judgements of this Court reported in 2007 (1) CTC 300 (K. Palaniswamy and another Vs. S.B.Subramani and another) and 2011 (1) Law Weekly, 925 (G.Seethadevi Vs. R.Govindaraj and others) in support of his contention. 5. According to me, the Court below has committed a serious error in directing the petitioner to pay Court fee under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act. The Court fee examiner has stated in his remarks that as per the Judgement of this Court reported in 1940 (1) MLJ 312, when a person seeks to establish a title which cannot be established without removing a decree or an instrument to which he is himself a party, then whatever be the yarn in which he dresses his suit, its substantial character must be a suit for cancellation of the decree or an instrument. Therefore, from the above Judgement, it is very clear that when a person is a party to a document and if he wants to set aside that document he has to pay the Court fee under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act. In this case, the plaintiff is represented by the Power Agent and the Power Agent executed the sale deed in favour of the 1st defendant on 5.11.2007. In this case, the plaintiff is represented by the Power Agent and the Power Agent executed the sale deed in favour of the 1st defendant on 5.11.2007. It is the specific case of the plaintiff/ revision petitioner that the power given to the 2nd defendant was cancelled on 10.9.2007 under a registered document No.4061 of 2007 and that was also informed to the 2nd defendant. Therefore, on the date of the execution of the sale deed by the 2nd defendant on 5.11.2007, the 2nd defendant had no authority to represent the plaintiff as the power given to the 2nd defendant was already cancelled. Therefore, even though the sale deed dated 5.11.2007 was executed by the 2nd defendant as the Power Agent of the plaintiff, it cannot be stated that the plaintiff was a party to the said document as the 2nd defendant cannot represent the plaintiff on that date. In a similar circumstances, this Court has held in the Judgement reported in 2007 (1) CTC 300 (K. Palaniswamy and another Vs. S.B.Subramani and another) that the suit need not be valued under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act as the power was cancelled even earlier. Further, the plaintiff has made specific averment in the plaint that the cancellation of the power was also informed to the 2nd defendant and despite the same, the Court below has stated that the cancellation power was not informed to the 2nd defendant or to the public and no paper publication was made and therefore the power shall be deemed to be in force. According to me, the approach of the Court below is erroneous and the Court below without properly following the law laid down in the Judgements of this Court reported in 2007 (1) CTC 300 (K. Palaniswamy and another Vs. S.B.Subramani and another) and 2011 (1) Law Weekly, 925 (G.Seethadevi Vs. R.Govindaraj and others) erred in passing the order directing the plaintiff to pay the Court fee under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act. 6. Hence, the order passed by the Court below is set aside and the plaintiff has to value the relief of declaration under Section 25(d) of the Tamil Nadu Court Fees and Suits Valuation Act and the revision is allowed. 7. In the result, the Civil Revision Petition is allowed. 6. Hence, the order passed by the Court below is set aside and the plaintiff has to value the relief of declaration under Section 25(d) of the Tamil Nadu Court Fees and Suits Valuation Act and the revision is allowed. 7. In the result, the Civil Revision Petition is allowed. Consequently, the connected Miscellaneous Petition is closed.