Judgment:
1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE23d DAY OF JULY, 2015 BEFORE THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA WRIT PETITION No.41960/2014 (GM-CPC) BETWEEN:
1. SRI. N. ASHOK REDDY S/O LATE H.M. NARAYANA REDDY, AGED ABOUT45YEARS, R/AT NO.84/1A, DODDAMMA TEMPLE ROAD, HULIMAVU VILLAGE, BANNERUGATTA POST, BEGUR HOBLI, BANGALORE – 560 076. …PETITIONER (BY SRI. ASHOK.B.PATIL , ADVOCATE) AND:
1. MISS. ANITHA. N D/O K.R. NARAYANA REDDY, AGED ABOUT40YEARS, R/AT NO.T.3, 10/1, SHRI. LAKSHMI NIVAS,4TH CROSS, VISHWESHWARAIAH LAYOUT, CHOLANAGAR, R.T.NAGAR POST, BANGALORE – 560 032.
2. THE STATE OF KARNATAKA REPRESENTED BY ITS2SECRETARY, DEPARTMENT OF REVENUE, VIDHANA SOUDHA, BANGALORE – 560 001. (R2 IS IMPLEADED VIDE COURT ORDER
DATED2406.2015) . . . RESPONDENTS ( BY Dr. R. RAMACHANDRAN, ADVOCATE FOR R1, SMT. R. ANITHA, HCGP FOR R2) 14TH ADDITIONAL CITY CIVIL THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF CONSTITUION OF INDIA PRAYING TO SET ASIDE THE ORDER
DATED228.2014 PASSED BY JUDGE, THE BANGALORE IN O.S.NO.5391/2013, (ANNEXURE-J) ON THE VALUATION AND THE COURT FEES PAYABLE BY THE PETITIONER ON THE COUNTER CLAIM IN THE AMENDED WRITTEN STATEMENT DATED317.2014. THIS WRIT PETITION COMING ON FOR PRILIMNARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT DELIVERED THE FOLLOWING: ORDER
Heard the learned counsel for the parties and Smt. R. Anitha, the Government Advocate, since the Government has been impleaded as a party to the present petition. 3 2. A short question raised by the defendant in his written statement is, as to what exactly the court fee is payable by the defendant on the counter-claim ?.
3. Smt. Anitha N., the respondent/plaintiff has filed a suit for the relief of declaration of title and possession of the suit property, which is a vacant site with a whatchman hut built thereon situated at Hulimavu village, Begur Hobli, Bengaluru South Taluk, and the said property is said to have been purchased from the defendant/petitioner. The defendant/petitioner has denied all the material averments.
4. According to the defendant/petitioner, the sale deed executed by him in favour of the plaintiff/Respondent No.1 has no significance in the eye of law and it is a sham document. The relief 4 sought for in the counter-claim is to declare the sale deed executed by him in favour of the plaintiff as a sham document and it is not a valid document, as the parties have not acted upon the said document.
5. Soon after filing of the counter-claim and the relief prayed therein, the court had raised objection regarding the court fee payable. Ultimately, the learned Judge of the trial court dealing with O.S. No.5391/2013 has held that the court fee is payable is on the market value of the property, over which the relief is sought for by the defendant in his counter-claim. In the order, the learned Judge has observed that the Court Fee payable by the defendant is on the market value of the suit property as on the date of the institution of the suit. Ultimately, the defendant is directed to 5 value the relief under Section 38(1) of the Karnataka Court Fees and Suit Valuation Act (for short, ‘KCF & SV Act’) and not under Section 24(d) of the KCF & SV Act, as found in the valuation slip filed along with the interim application and this order dated 22.08.2014 passed by the XXV Additional City Civil Judge, Bengaluru, is called in question.
6. Dr.Ramachandran, representing Respondent No.1 has relied upon a decision reported in AIR1991KAR. 283 [M PARVATHAMMA Vs. K.R. LOKANATH]. to contend that the court fee chargeable on the counter-claim would be the same as found in the plaint. He has drawn the attention of this court to Section 8 of the KCF and SV Act 1958, which is referred to in a reported case by this court. Section-8 of the said Act is reproduced herein below:- 6 “Sec. 8 : Set off or counter claim,- A written statement pleading a set off or counter claim shall be chargeable with fee in the same manner as a plaint.” It is further argued by the learned counsel Dr. Ramachandran that the directions of the trial court given to the defendant is to value and pay the court fee on the basis of the market value is perfectly justified. The purport of Section-8 of KFC & SV Act is that a counter-claim will be treated as a plaint for the purpose of payment of court fee. Therefore the relief sought for in the counter-claim will have to be valued in the light of the principles enunciated in SUHRID SINGH @ SARDOOL SINGH Vs. RANDHIR SINGH reported in AIR2010S.C.
2807. Section 38 of the KCF and SV Act is re-produced below. Sec. 38 Suits for cancellation of decrees, etc., (1) In a suit for cancellation of 7 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. 8 Explanation 1.- A suit to set aside an award shall be deemed to be a suit to set aside a decree within the meaning of this section. Explanation 2.- In a suit for cancellation of a decree and possession of any property, the fee shall be computed as in a suit for possession of such property.
7. The mandate of Section 8 of the KFC and SV Act is that the counter claim shall be chargeable with fee in the same manner as above.
8. What exactly is the relief sought for in the counter-claim will have be looked into for all practical purposes. It is not the same court fee as paid by the plaintiff, is to be paid by the defendant. In fact, the defendant has sought for the relief of declaration to the effect that the sale deed executed by the plaintiff is a sham document and it was not at all acted upon by the parties and that the 9 assertion of the defendant is that he is in possession of the property and therefore, he is not required to seek the relief of injunction.
9. While dealing with the same provisions found in Kerala Court-Fees and Suits Valuation Act (10 of 1960) , the Hon’ble Apex Court, in a case reported in AIR2010SCW3754[SATHEEDEVI Vs. PRASANNA]. has held that the word ‘Value’ found in Section 40(1) does not mean the market value, but the value shown in the document sought to be impugned. The same analogy is perfectly applicable to the present case also. The consideration mentioned in the sale deed and executed by the defendant in favour of the plaintiff is Rs.2,06,000/-.
10. In the case of Satheedevi (Supra), the Hon’ble Apex Court has observed that the value of 10 the property for which the document was executed would be the consideration for reckoning the court fee and not the market value. It is also further held that, if the Legislature intended that fee should be payable on the market value of the subject matter of suit filed for cancellation of a document which purports or operates to create, declare, assign, limit or extinguish any present or future right, title and interest, then it would have, instead of incorporating the requirement of payment of fees on value of the subject matter of the suit, as has been done in respect of other types of suits would have indicated the words “Market Value”. The decision of Hon’ble Apex Court rendered in Satheedevi’s case (cited supra) relied upon by learned counsel Dr. Ramachandran, is of no help to him. In this view of the matter the approach of the Trial Court in so far as directing the defendant to file fresh valuation slip 11 in terms of Section 38(1) of KCF & SV Act, is upheld. The direction in so far as it relates to the defendant to value and pay the court fee on the market value of the suit is to be set aside, in terms of supervisory direction in that regard.
11. Dr. Ramachandran, learned counsel, has brought to the notice of this court that the relief claimed by the defendant in his written statement in the sense, is the relief of declaration of title and therefore he has to pay the court fee under Section 24(d) of the KCF & SV Act. This aspect of the matter has been dealt with by the Hon’ble Apex Court in Suhrid Singh’s case (cited supra). What exactly is the court fee payable with regard to the relief sought in regard to cancellation of document has to be dealt with, as held in the said decision in Suhrid Singh’s Case, It is held in Suhrid Singh’s 12 case that, if a person is a party to the document executed by him and if he attacks that document on the ground that it does not bind him, he has to pay the court fee on the consideration mentioned in the document. Suppose, the person is not a party to the said document, it is held that such a relief could be covered as if it is not capable of being valued. Paragraph-6 of the said decision, which is relevant, is extracted below. “6. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non- executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to ‘A’ and ‘B’ – two brothers. ‘A’ executes a sale deed in favour of ‘C’. Subsequently ‘A’ wants to avoid the sale. ’A’ has to sue for 13 cancellation of the deed. On the other hand, if ‘B’, who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by ‘A’ is invalid/void and non-est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non- binding. But the form is different and court- fee is also different. If ‘A’, the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court-fee on the consideration stated in the sale deed. If ‘B’, who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court-fee of Rs.19.50 under Article 17(iii) of second Schedule of the Act. But if ‘B’, a non- executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad valorem court-fee as provided under section 7(iv)(c) of the Act. Section 7(iv)( c) provides that in suits for a declaratory decree with consequential relief, the court–fee shall be computed 14 according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7.” 12. In the present case, no prayer has been sought for cancellation of the sale deed and what is sought for by the defendant is that it is not a valid sale deed and it is a sham document and it has not been acted upon. But the defendant is a party to the said document and therefore, this court has held that the court fee payable is under Section 38(1) of KCF & SV Act, based on the consideration found in the document and not on the basis of the market value of the property to reckon the court fee under Section 24(d) of KCF & SV Act. Therefore advalorem court fee payable is on the basis of the 15 consideration mentioned in the sale deed and not on the market value of the property.
13. In view of the above observations, the petition is disposed of by directing the petitioner to pay the court fee on Rs.2,06,000/- in terms of Section 38(1) of the KCF & SV Act, along with a fresh valuation slip. Sd/- JUDGE KGR*