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2014 DIGILAW 2052 (MAD)

T. M. Muthukrishan v. K. Susila

2014-07-10

R.KARUPPIAH

body2014
JUDGMENT 1. The revision Petitioner/Plaintiff filed this revision Petition against the order, dated 13.09.2005 made in unnumbered O.S.S.R.No.334 of 2005 on the file of the District Munsif Court, Alandur. 2. For the sake of convenience, the Plaintiff in the original suit is referred as the revision Petitioner and the defendants in the original suit are referred as respondents hereafter. 3. The revision Petitioner has filed a suit and in the plaint, the revision Petitioner prayed for cancellation of the sale deed, dated 30.11.2004 registered as document No.200404942 of 2004 on the file of the third respondent and for costs. In the above said plaint, the revision Petitioner valued the suit for the purpose of court fees and jurisdiction under Schedule II Article 17(iii) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 and paid a sum of Rs.200/-+ Rs.70.50/-. 4. The trial Court has posted the case for several hearings and heard the the learned counsel appearing for the revision Petitioner and also considered the written arguments filed by the revision Petitioner and finally passed an order on 13.09.2005. In the above said order, the trial Court has held that the revision Petitioner filed the suit for cancellation of an instrument and therefore proper court fee payable under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act (i.e.) as on the value of the subject-matter of the suit and not under Schedule II Article 17(iii) of the Tamil Nadu Court Fees and Suits Valuation Act. Therefore the trial Court has returned the plaint and directed the revision Petitioner to value the suit and pay proper court fee as per Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act and represent the plaint within a period of one month. 5. Aggrieved over the above said order of return of plaint, the revision Petitioner has preferred this revision Petition. 6. The learned counsel appearing for the revision Petitioner would submit that the revision Petitioner filed the plaint under Section 31 of the Specific Relief Act and therefore the court fee paid under Schedule II Article 17(iii) of the Tamil Nadu Court Fees and Suits Valuation Act is correct. 6. The learned counsel appearing for the revision Petitioner would submit that the revision Petitioner filed the plaint under Section 31 of the Specific Relief Act and therefore the court fee paid under Schedule II Article 17(iii) of the Tamil Nadu Court Fees and Suits Valuation Act is correct. The learned counsel further submitted that the trial Court has wrongly held that the revision Petitioner should pay the court fee under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act since the above said provision relates to the suits for cancellation of decree, wherein, the plaint of the revision Petitioner is only for cancellation of the document and therefore the order of return of plaint by the trial Court is illegal. 7. Per contra, the learned counsel for the respondents would submit that the revision Petitioner filed the suit and seeking specific relief of cancellation of sale deed, dated 30.11.2004 executed by the revision Petitioner himself by alleging that both the first and second respondents had in collusion among themselves, and cheated the revision Petitioner and obtained the sale deed by playing fraud and misrepresentation and therefore the above said sale deed executed by the revision Petitioner is invalid in law. In the above circumstances, The learned counsel further pointed out that the court fee is to be paid under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act as rightly held by the trial Court and therefore there is no need to interfere with the above said findings of the trial Court. 8. A careful reading of the entire plaint revealed that the revision Petitioner filed a suit for cancellation of sale deed dated 30.11.2004 registered as document No.2004004942 of 2004 on the file of the third respondent. In the plaint averments, it is specifically stated that the revision Petitioner had executed the above said sale deed dated 30.11.2004, but the contention of the revision Petitioner is that the above said sale deed executed by the revision Petitioner is only by committing fraud and misrepresentation of first and second respondents herein and also by way of cheating and hence the above said sale deed executed by the revision Petitioner is not valid in law and on that ground the revision Petitioner prayed for passing a decree of cancellation of sale deed. Admittedly, the revision Petitioner had executed the above said alleged sale deed, but according to the Petitioner, it is obtained by fraud and misrepresentation by respondents 1 and 2. In the above said circumstances, it is to be decided whether the court fee paid by the revision Petitioner is under Article 17(iii) of Schedule II of Tamil Nadu Court Fees and Suits Valuation Act, 1955 is correct or court fee should be paid under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. 9. It is necessary to extract the relevant provisions i.e., Article 17 of the Tamil Nadu Court Fees and Suits Valuation Act of Schedule II, which reads as under: (1) (2) (3) 17 Agreement in writing stating a question for the opinion of the Court under the Code of Civil Procedure, 1908--(a) when presented to a District Munsif's Court or the City Civil Court of Chennai or Sub- Court,--(i) where the value of the subject-matter does not exceed Rs.30,000/- (ii) where the value of the subject-matter exceeds Rs.30,000/- (b) in other courts Fifty rupees One hundred rupees Two hundred rupees 10. It is also relevant to extract Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act which reads as follows: "40. 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 document 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. (2) If the decree or other document is such that the liability under it cannot be split up and the relief claimed relates only to a particular item of property belonging to the plaintiff or to the Plaintiff's share in any such property, fee shall be computed on the value of such property or share or on the amount of the decree, whichever is less." 11. With regard to seeking the relief of declaration alone, the relevant provision under Section 34 of the Specific Relief Act reads as under: "34. Discretion of Court as to declaration of status or right.--Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief. Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title omits to do so." 12. As already discussed, in the instant case, the revision Petitioner prayed for cancellation of the sale deed, dated 30.11.2004. A careful reading of the entire averments made in the plaint revealed that the revision Petitioner admitted the execution of the sale deed but the revision Petitioner contended that it is obtained by playing fraud and misrepresentation. In the above said circumstances, the revision Petitioner should pay the court fee under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act and not entitled to pay the court fee under any other provisions as contended by the learned counsel for the revision Petitioner. 13. The learned counsel appearing for the respondents submitted that the revision Petitioner seeking the relief of cancellation of sale deed alone and not seeking any consequential relief and therefore the suit is not maintainable. 14. Per contra, the learned counsel for the revision Petitioner would submit that in the plaint, the revision Petitioner is seeking only the relief of cancellation of sale deed and it is maintainable. To substantiate the above said contention of the learned counsel for the revision Petitioner, the learned counsel relied on two decisions: 1. AIR 1953 Sup.Court 28(Nemi Chand .vs. Edward Mills Co) 2. To substantiate the above said contention of the learned counsel for the revision Petitioner, the learned counsel relied on two decisions: 1. AIR 1953 Sup.Court 28(Nemi Chand .vs. Edward Mills Co) 2. 1956 PATNA 203(Rambharosa Lal .vs.Smt. Binda Devi and another) 15. The maintainability of the suit may be decided after the appearance of other side. Therefore the above said question need not be discussed at this stage. In view of the above said discussion, this Court is of the view that the finding of the trial Court is valid and there is no need to interfere with the above said finding. 16. In the result, the Civil Revision Petition is dismissed with observation that the revision Petitioner is directed to represent the plaint with necessary court fees under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act within ten days from the date of the order, failing which the revision Petitioner is not entitled to represent the plaint thereafter. There is no order as to costs.