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2012 DIGILAW 436 (KAR)

V. Prabhakar v. K. Raja

2012-05-24

S.ABDUL NAZEER

body2012
Judgment :- Abdul Nazeer, J 1. In these cases, the petitioner has assailed the Orders dated 28.5.2011 and 19.10.2011 in O.S.No.2192/2008 on the file of the 27th Additional City Civil Judge, Bangalore. 2. The petitioner is the plaintiff in the above suit and the respondents are the defendants. The plaintiff filed the above suit for declaration that the Sale Deed dated 29.6.2007 is null and void and not binding on him and for mandatory injunction that defendant Nos.2 to 5 should not continue to occupy the suit schedule property. The defendants have filed their written statement opposing the suit. They have also raised a plea that the suit has not been properly valued by the plaintiff. Therefore, while framing the issues, the Court below has framed Issue No.5 as under: “Whether the defendants prove that the valuation of the suit for the purpose of Court fee and jurisdiction is incorrect as contended in the written statement?” 3. The said issue was tried as a preliminary issue as provided in Section 11(2) of the Karnataka Court Fees and Suits Valuation Act, 1958 (for short ‘the Act’). On 28.5.2011, the Court below has passed an order holding that the plaintiff has not properly valued the suit for the purpose of Court fee. He should have valued the suit under Section 38 of the Act. The plaintiff was directed to pay Court fee on the market value of the property. 4. The plaintiff filed an application I.A.No.3 for review of the said order on the ground that in the suit, he has sought for declaratory relief. Therefore, he is not liable to pay Court fee under Section 38 of the Act. The said application has also been dismissed by the Trial Court by its Order dated 19.10.2011. 5. Learned Counsel for the petitioner/plaintiff submits that the plaintiff has sought for declaration that the sale deed in question executed by respondent No.1 in favour of respondent Nos.2 to 5 is null and void and not binding on him or his brother. Therefore, the plaintiff is not liable to pay Court fee under Section 38 of the Act. He is required to pay Court fee under Section 24 of the Act. There was an error apparent on the fact of the record. That is why the plaintiff filed an application I.A.No.3 for review of the said order. Therefore, the plaintiff is not liable to pay Court fee under Section 38 of the Act. He is required to pay Court fee under Section 24 of the Act. There was an error apparent on the fact of the record. That is why the plaintiff filed an application I.A.No.3 for review of the said order. The Court below ought to have reviewed the order by accepting the contention of the plaintiff. Thus, the order on I.A.No.3 is also erroneous. 6. On the other hand, Learned Additional Government Advocate appearing for respondent No.7 has sought to justify the impugned orders. 7. I have carefully considered the arguments of the Learned Counsel made at the Bar and perused the materials placed on record. 8. The contention of the Learned Counsel for the petitioner is that the plaintiff has sought declaratory relief and that the suit should have been valued under Section 24 of the Act. As has been noticed above, the main relief sought in the suit is for declaration that the Sale Deed dated 29.6.2007 is null and void and not binding on the plaintiff. The ancillary relief is for mandatory injunction that defendant Nos.2 to 5 should not continue to occupy in the suit schedule property. It is a multifarious suit seeking more than one relief. Therefore, we must first find out as to whether the suit is for declaration or for cancellation of the sale deed. 9. In order to determine the proper Court fee payable by the plaintiff, we have to first ascertain the substantial relief sought for in the plaint. In a multifarious suit, while determining the proper Court fee payable on the plaint, the Court has to see the nature of the suit and the reliefs claimed. If a substantive relief is claimed, though clothed in the grab of a declaratory decree with a consequential relief, the Court is entitled to see what is the real nature of the relief, and if satisfied, that it is not a mere consequential relief, but a substantive relief, it an demand the proper Court fee on that relief, irrespective of the arbitrary valuation put by the plaintiff in the ostensible consequential relief (See SHIVAPPA SATYAPPA MUDAKANNAVAR vs. SATYAPPA YELLAPPA MUTTAPAGOL & OTHERS 1971 (1) My.L.J.374. 10. 10. In the instant case, the substantive relief sought in the plaint is for cancellation of the sale deed in the garb of a declaratory decree. The second relief is for grant of prohibitory injunction though styled as for mandatory injunction, which is ancillary to the main relief. If the relief is sought only as ancillary to the main relief, the plaintiff has to be charged only on the value of the main relief as provided in Section 6 of the Act. Therefore, the plaintiff has to value the suit for the purpose of Court fee under Section 38 and not under Section 24 of the Act. 11. At this stage, Learned Counsel for the petitioner submits that the plaintiff is liable to pay Court fee on the value specified in the deed and not on the market value of the property. 12. Section 38(1) of the Act provides for payments of Court fee in a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property. It is as under: “38. Suits for cancellation of decrees, etc:- (1) In a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject matter of the suit, and such value shall be deemed to be. If the whole decree or other documents is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed: If a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property.” 13. The above provision contains the expression “value of the subject matter”. Therefore, the question for consideration is whether the said expression means market value of the property as on the date of presentation of the plaint or the value stated in the documents. The above provision contains the expression “value of the subject matter”. Therefore, the question for consideration is whether the said expression means market value of the property as on the date of presentation of the plaint or the value stated in the documents. A Division Bench of this Court in R. RANGAIAH & ANOTHER vs. THIMMA SETTY & OTHERS 1963 (1) My.L.J.671- was interpreting Section 4(iv)A of the Mysore Court Fees Act, 1990, which is more or less similar to Section 38(1) of the Act. The Court has held that what is relevant for the purpose of Section 4(iv)A is not the value of the property specified in the document but its real and actual value when the suit is brought. 14. In MAHABOOBSAB vs. GOUDAPPA 1974 (2) KLJ Short Notes 305, this Court was considering a similar question under Section 38(1) of the Act. While following the decision in R. RANGAIAH’s case, it has been held as under: “The value of the property in Section 38(1) must be understood as the market value of the property and not the amount of consideration mentioned in the deed sought to be cancelled. Thus, in a suit for cancellation of a sale deed, the plaintiff is justified in valuing the suit on the basis of the market value of the property which was the subject matter of the sale deed.” 15. Section 7 of the Act provides for determination of the market value of the property for the purpose of Section 38 and certain other provisions of the Act. Sub-Section (1) of Section 7 states that where the fee payable under the Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint. 16. Thus, it is clear that in a suit for cancellation of the sale deed, the Court fee has to be computed on the basis of the market value of the property, which is the subject matter of the sale deed in question as on the date of the presentation of the plaint. The market value has to be determined in accordance with Section 7 of the Act. 17. The market value has to be determined in accordance with Section 7 of the Act. 17. The brings me to the second question as to whether the Court below is justified in rejecting the application filed by the plaintiff contending that the order of which review is sought suffers from error on the face of the record? 18. Section 114 read with Order 47 Rule 1 of the CPC provides for review of the judgment or order. In M/S NORTHERN INDIA CATERERS (INDIA) LTD. vs. LIEUTENANT GOVERNOR OF DELHI (1980)2 SCC 167 , the Honorable Supreme Court while considering a petition for review, has observed as under. “A plea for review, unless the first Judicial view is manifestly distorted, is like asking for the moon”. 19. It is settled that the first and foremost requirement of entertaining a review petition is that the order, review of which is sought suffers from error apparent on the fact of the record and permitting the order to stand will lead to failure of justice. In the absence of any such error, finality attached to the judgment/order cannot be disturbed. An error, which is not self evident and has to be detected by the process of reasoning can hardly be said to be error apparent on the fact of the record, justifying the Court to exercise the power of review. There is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where error on a substantial point of law stares in the fact, and there could reasonably ne no two opinions, is a clear case of error apparent on the fact of the record. An error, which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the fact of the record. It is also settled that when an error is patent and can be located without any elaborate argument, without any scope for any controversy with regard to such error, which as if, at a glance stares at the face can be said to be one apparent on the face of the record. Re-agitating the points already decided is impermissible in review proceedings. 20. Re-agitating the points already decided is impermissible in review proceedings. 20. In S. BAGIRATHI AMMAL vs. PALANI ROMAN CATHOLIC MISSION (2009) 10 SCC 464 , the Apex Court has held that an error contemplated under Rule 1 of Order 47 CPC for permissibility of review must be such which is apparent on the face of the record and not an error which has to be fished out and searched. In other words it must be an error of inadvertence. It should be something more than a mere error and it must be one, which must be manifest on the face of the record. When does an error cease to be mere error and becomes an error apparent on the face of the record depends upon the materials placed before the Court. If the error is so apparent that without further investigation or enquiry, only one conclusion can be drawn in favour of the applicant, the review will lie. 21. The Court below has found that there was no error whatsoever in its earlier order requiring exercise of the review power. Therefore, it has rejected the application. I have also held that the Court below was right in directing the plaintiff to pay the Court fee on the market value of the property as on the date of the presentation of the suit. I am of the view that the Court below is right in rejecting I.A.No.3. There is no merit in the writ petitions. They are accordingly dismissed. At the request of the Learned Counsel for the petitioner/plaintiff, the plaintiff is granted eight weeks time from today for payment of deficit Court fee. No costs.