1 R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE23D DAY OF JUNE, 2023 BEFORE THE HON'BLE MR. JUSTICE H.P. SANDESH CIVIL REVISION PETITION NO.339 OF2023BETWEEN:
1. . SRI G.S. MAHENDRA, S/O LATE M.SIDDIAH, AGED ABOUT61YEARS, RESIDING AT NO.672/A, 11TH CROSS, 7TH BLOCK (WEST), JAYANAGAR, BANGALORE-560082 2 . SRI. G.S. RAVINDRA S/O LATE M. SIDDIAH, AGED ABOUT55YEARS, NO.314, GROUND FLOOR, 14TH CROSS, 1ST FLOOR, 2ND BLOCK, JAYANAGAR, BANGALORE-5600114. 3 . SMT. INDIRA GANANENDRA, W/O LATE G.S GNANENDRA AGED ABOUT54YEARS, NO.NO.3 15, 14TH CROSS, 1ST FLOOR, 2ND BLOCK, JAYANAGAR, BANGALORE-560011. … PETITIONERS (BY SRI B.S.RAGHU PRASAD, ADVOCATE) AND: SMT. KOMALA, W/O SRINIVASA, D/O LATE M.SIDDIAH, 2 AGED ABOUT65YEARS, R/O AT NO.4, ASHRAYA APARTMENTS, 3RD MAIN, SAMRAT LAYOUT, BANNERGHATTA ROAD, ARAKERE, BANGALORE-560076. NOW IN UNIT500 253 FRANKLIN STREET, MELBOURN, VICTORIA-30D REPRESENTED BY HER GPA HOLER AND SON MR.VIKRAM SRINIVAS. … RESPONDENT (BY SMT. LATHA SHETTY, ADVOCATE FOR C/R) THIS CRP IS FILED SECTION115OF CPC AGAINST THE ORDER
DATED2104.2023 IA.NO.III IN O.S.NO.439/2022 ON THE FILE OF THE XIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE BANGALORE AND ETC. THIS CRP HAVING BEEN HEARD AND RESERVED FOR ORDER
S ON0906.2023, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING: ORDER
This revision petition is filed challenging the order dated 21.04.2023 passed on I.A.No.3 filed under Order VII Rule 11 read with section 151 of CPC in O.S.No.439/2022.
2. The factual matrix of the case of the plaintiff before the Trial Court is that the defendants have obtained the document of release deed by misrepresentation and fraud. Hence, sought for the relief of cancellation of registered release deed dated 01.07.2019 as well as other reliefs. 3
3. The defendants appeared and filed an application under Order VII Rule 11 read with Section 151 of CPC praying the Court to reject the plaint as there is no cause of action, Court fee paid is insufficient and plaint being not verified and not filed in accordance with law. In support of this application, an affidavit is sworn to by defendant No.1 contending that the plaintiff is his younger sister who is currently in Bengaluru and no proper verification of the plaint since it reflects that she has signed the plaint in Australia but it is filed at Bengaluru and verifying affidavit is also deposed at Australia and not at Bengaluru which is irregular, illegal and not in accordance with law. It is also further sworn to that since she had already received adequate financial assistance while constructing residence at Shivamogga by her brothers and her brothers had supported her financially while her husband was medically suffering Parkinsons and Alzeimers. It is also sworn to that the averments of the plaint are false and no power is given to the GPA holder to institute the suit. It is also sworn to that the Court fee paid in a sum of Rs.25/- is improper for cancellation of document is sought and ought to have been paid on the market value of each property since there is no valuation of each 4 property hence, the plaint is liable to be rejected and described the item Nos.1 to 6 in paragraph 9 and contended that suit ought to have been valued for the purpose of Court fee under Section 38 of Karnataka Court Fees and Suit Valuation Act hence, the plaint is liable to be rejected.
4. The respondent/plaintiff resisted this application by filing the objection statement contending that the document was signed in Australia as the plaintiff and her son who is a GPA holder were in Australia when the cause of action arose and were not in a position to travel back to India due to several travel restrictions in Australia. The precaution was taken to ensure that the verification was done and the documents were properly executed. Hence, the very contention that no authorization to file the suit cannot be accepted when there is a proper verification. It is also contended that in the plaint there is clear cause of action is mentioned as it was arose on 29.09.2021 and in the plaint it is specifically pleaded with regard to the cause of action and narrated with regard to the misrepresentation and fraudulently obtained the document dated 01.07.2019 hence, sought for an appropriate order. It is also contended that no consideration was shown in the document and the plaintiff has 5 sought for cancellation as the document as the same is void and not binding on her and hence, consideration is not shown in the document. When the document is a fraudulent one and void document, the question of paying the Court fee does not arise. Hence, the contention of the counsel for the defendants that not paid the proper Court fee cannot be accepted and Section 38 of the Act will not attract.
5. The Trial Court having considered the grounds urged in the application as well as in the statement of objections rejected the application in coming to the conclusion that while considering Order VII Rule 11 of CPC, the Court has to look into the averments of the plaint. The plaintiff has sought for the relief of cancellation of the document on the ground that the same was obtained by misrepresentation and by committing fraud and the same requires to be tried and the same cannot be dismissed at the threshold and also mentioned the cause of action to file the suit. The Trial Court also with regard to the Power of Attorney is concerned, taken note of Clause 16 of the Power of Attorney which shows that it authorizes the Power of Attorney holder to file the suit to cancel the document obtained by the defendants under misrepresentation. The Court also 6 taken note of the ground urged with regard to the suit is not properly valued and comes to the conclusion that the opportunity has to be given to pay the Court fee if the Court fee paid is insufficient and the same cannot be dismissed at the threshold.
6. Being aggrieved by this order, the present revision petition is filed before this Court. The counsel for the petitioners would vehemently contend that Order VII Rule 11 of CPC is provided that the Court can itself look the prayer sought and the documents provided to ascertain the maintainability of the suit. On prima facie reading of the plaint itself manifests that suit was not maintainable. The counsel also would vehemently contend that since there were no signature found on each page of the pleading and signature was found only on the last page, it was as if there was no plaint filed and plaint ought to have rejected. The counsel would vehemently contend that verifying affidavit was sworn to before the notary opposed to Notaries Act and the same could not be considered as being sworn to in India contrary to Notaries Act and same is a defective verifying affidavit. Hence, on that ground also, the plaint ought to have been rejected. The counsel also would vehemently contend that 7 only nominal Court fee was paid without valuing the property and when there is deliberate undervaluation of the plaint, the same is liable to be rejected.
7. The counsel in support of his argument relied upon the judgment of this Court reported in ILR2005KAR884in the case of T L NAGENDRA BABU vs MANOHAR RAO PAWAR wherein this Court discussed with regard to when the document of Power of Attorney is invoked and filed the suit, the documents would have been duly executed and authenticated and brought to notice of this Court to paragraph 10 wherein this Court made an observation that if Power of Attorney was seriously contested with regard to the very execution is concerned and the same is not the proper document.
8. The counsel also relied upon the judgment of the Apex Court reported in AIR1979SC134in the case of H D VASHISHTA vs M/S GLAXO LABORATORIES (I) (P) LTD., wherein also the Apex Court held that the material facts constituting cause of action not averred in plaint hence, suit must fail. The counsel referring this judgment would contend 8 that in the case on hand also no material facts constituting cause of action in the suit hence, the same has to be rejected.
9. The counsel also relied upon the judgment of the Apex Court reported in AIR2005SC2392in the case of SWAMY ATMANANDA AND OTHERS vs RAMAKRISHNA TAPOVANAM AND OTHERS wherein also the Apex Court held that the cause of action is a bundle of facts which taken with law applicable to them and in the absence of material facts of cause of action, the suit must fail.
10. The counsel also relied upon the judgment of this Court reported in 2017 (3) KAR L J356in the case of CANARA BANK, ANCARD DIVISION, BANGALORE vs GIRIJA PRASAD GUPTA wherein this Court also discussed with regard to the cause of action consists of bundle of facts, it must inter alia, include some act done by the defendant.
11. The counsel also relied upon the judgment of the Apex Court reported in (1980) 1 SCC616in the case of MEENAKSHISUNDARAM CHETTIAR vs VENKATACHALAM CHETTIAR wherein the Apex Court discussed with regard to that plaintiff is entitled to give a tentative valuation if inspite of his 9 genuine efforts he is unable to make out an exact valuation and if it is not done, the plaint is liable to be rejected in a case of deliberate undervaluation.
12. The counsel also relied upon the judgment of the Apex Court reported in (2009) 9 SCC173in the case of P K PALANISAMY vs N ARUMUGHAM AND ANOTHER wherein the Apex Court also considering Order VII Rule 11 held that an application was filed in the year 2008, though written statement was filed in the year 2003 and evidently, 04.01.2008 was not the stage for entertaining the application under Order VII Rule 11(c). Payment of Court fee is a matter between the State and suitor. In the event a plaint is rejected, the defendant would be benefited thereby. But if an objection is to be raised in that behalf or an application is to be entertained by the Court at the behest of a defendant for rejection of the plaint in terms of Order VII Rule 11(c) CPC, several aspects of the matter are required to be considered.
13. The counsel also relied upon the judgment of the Apex Court reported in AIR2022SC4724in the case of C S RAMASWAMY vs V K SENTHIL AND OTHERS wherein also the 10 Apex Court discussed with regard to Order VII Rule 11(d) of CPC – rejection of plaint. Merely by using the word ‘fraud’, plaintiffs cannot bring suits within limitation, which otherwise maybe barred by limitation, the plaint is liable to be rejected.
14. The counsel also relied upon other two judgments of the Apex Court and the same are not in respect of the issues involved between the parties invoking Order VII Rule 11 of CPC hence, they are not relied upon since those judgments are with regard to Section 6 and Section of 8 of Devolution of coparcenary property and also with regard to Order 22 Rule 5 of determination of question as to legal representative.
15. Per contra, the learned counsel appearing for the respondent would vehemently contend that in the plaint, it is specifically pleaded with regard to the cause of action and also the plaint is signed by the Power of Attorney holder and separate valuation slip is also filed along with the suit. The very contention of the counsel for the petitioners that Section 38 of Karnataka Court Fees and Suit Valuation Act is attracts cannot be accepted. The counsel also would vehemently contend that only with an intention to scuttle the proceedings, an application 11 is filed and no merit in the application and the Trial Court dealt with all the aspects of cause of action and also whether the suit is barred by limitation and the same is verified and the Court fee also is a matter of trial with regard to whether Court fee paid is sufficient or not and hence, the Trial Court has not committed any error.
16. The counsel for the respondent in support of her arguments relied upon the judgment reported in AIR2016KAR58in the case of JAWARE GOWDA AND ANOTHER vs BASAVARAJU N J AND OTHERS. The counsel referring this judgment would vehemently contend that suit is filed for the cancellation of instrument that is release deed and specific averment is also made in the plaint that by misrepresentation the signature is obtained. In this judgment it is held that value of subject matter of suit also to be considered. If the consideration is mentioned in the instrument which is to be considered but the document on record no such consideration is mentioned and the Court held that words ‘market value’ conspicuously missing cannot be added or read in Section and the same is not found in Section 38. Hence, this judgment is aptly applicable to the case on hand. 12
17. The counsel also relied upon the judgment of the Apex Court reported in AIR2014SC1286in the case of POLAMRASETTI MANIKYAM AND ANOTHER vs TEEGALA VENKATA RAMAYYA AND ANOTHER wherein also the Apex Court while considering the Court Fees and Suit Valuation Act, discussed with regard to the expression value of property cannot be substituted with expression market value of property, suit for cancellation of sale deed is basis for Court fee is sale consideration mentioned in sale deed, not on basis of market value of the property. The counsel would vehemently contend that no consideration is mentioned in the instrument hence, the question of payment of Court fee does not arise.
18. The counsel also relied upon the judgment reported in AIR2010SC2777in the case of SATHEEDEVI vs PRASANNA AND ANOTHER wherein also discussed with regard to the Court Fees and Suit Valuation Act. The determination of market value of property and when the suit for cancellation of document which creates any right, title or interest in immovable property, value of property for which the document was executed, and not, its market value, is relevant for purpose of Court fee. 13
19. The counsel also relied upon the judgment reported in 2015(3) KCCR2149in the case of SRI JAWARE GOWDA AND ANOTHER vs SRI BASAVARAJU N J AND OTHERS. The counsel referring this judgment would vehemently contend that in the case on hand also, the allegation is Palupatti is forged, concocted and invalid and plaintiff was valued the suit for relied of declaration under Section 24(d) and not for mandatory injunction under Section 26(c) and paid Court fee. The Court held that if the suit is for the relief of cancellation, Section 38 attracts but since no value is mentioned in the instrument, it cannot be valued under Section 38 of the Act. Therefore, Section 24(d) of the Act is attracted. Therefore, the plaintiff in the absence of the value of the subject matter being mentioned in the instrument and as the case does not fall under Section 24(a) and (d), they have no obligation to value the suit on the basis of the market value. The plaintiffs have rightly valued the suit under Section 24(d) of the Act and have given their valuation as rupees one thousand. The counsel referring this judgment would vehemently contend that when the document does not discloses any consideration, the question of payment of 14 Court fee either on the market value or on the property value does not arise.
20. Having heard the learned counsel appearing for the respective parties, considering the material facts and the principles laid down in the judgments referred supra, the point that would arise for the consideration of this Court that: (1) Whether the Trial Court has committed an error in dismissing the application filed under Order VII Rule 11 of CPC and whether the said order suffers from its legality and correctness?. (2) What order?. Point No.1:
21. Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record particularly the plaint averments, wherein the specific averment is made that she has got 1/6th share in the suit schedule properties and the document of release deed was obtained by misrepresentation and fraudulently when her husband was not keeping well, she was taken to the Sub-Registrar office stating that she has to sign the document as a witness and obtained the 15 document. The issue between the parties is with regard to the misrepresentation and fraudulent act is concerned, hence, the matter requires to be tried before the Trial Court to prove that whether there is misrepresentation and fraudulent act in taking the signature. No doubt, the relief is sought for the cancellation of the release deed. As rightly pointed out by the counsel for the respondent that on perusal of the document which is produced before this Court by the revision petitioners, that is, release deed, nowhere the document discloses any consideration and on perusal of this document it shows that no consideration is mentioned in the document and hence, the judgment relied upon by the respondent counsel is with regard to the valuation and payment of Court fee is concerned is aptly applicable to the case on hand.
22. This Court as well as the Apex Court held with regard to that invoking of Court Fees and Suit Valuation Act with regard to the expression, value of the property and also the subject matter in issue and whether the Court fee is payable under Section 38 or not. It is very clear that Section 38 will not attract when the consideration is not shown in the document which is in question and no doubt, the counsel appearing for the petitioners 16 relied upon the judgment with regard to plaint is liable to be rejected in case of deliberate undervaluation and no such circumstances warranted in the case on hand since no consideration is mentioned in the document. Hence, the judgment of the Apex Court in the case of MEENAKSHISUNDARAM CHETTIAR (referred supra) is not applicable to the facts on hand since there is no deliberate undervaluation as contended by the counsel for the petitioners. The counsel also relied upon the judgment of the Apex Court in the case of P K PALANISAMY (referred supra) wherein the Apex Court discussed with regard to Order VII Rule 11 (c) of CPC noticing when belatedly an application is filed under Order VII Rule 11 and comes to the conclusion that that several aspects of the matter are required to be considered when an application is filed under Order VII Rule 11 (c) of CPC and the said judgment goes against the petitioners and hence, the said judgments are not applicable. The counsel also relied upon the joint family in the case of C S RAMASWAMY referred supra with regard to the rejection of plaint on the ground of limitation but in the case on hand, the question of limitation does not arise hence, the said judgment also not applicable to the case on hand. 17
23. The other contention that there is no cause of action. To substantiate the same, the counsel relied upon the judgment of Apex Court in the case of H D VASHISHTA referred supra and the same is in respect of Order VI Rule 2 - material facts constituting cause of action not averred in plaint. The counsel also relied upon the judgment in the case of SWAMY ATMANANDA referred supra with regard to Order II Rule 2 cause of action is bundle of facts which taken with law applicable to them and also relied upon the judgment of this Court in CANARA BANK’S case wherein also discussed with regard to the cause of action is a bundle of facts.
24. In keeping the principles laid down in the judgments and also looking into the averments of the plaint, the plaintiff specifically pleaded with regard to under what circumstances, the document was taken. In paragraph 6 as well as in 9 narrated the facts and also stated cause of action when it was arose i.e., on 01.09.2021 when the plaintiff was informed by the relatives about the said document and when she obtained the document of certified copy of the release deed on 01.07.2011 and the Trial Court also rightly comes to the conclusion that Court has to look into the averments of the plaint while taking 18 note of the cause of action and rightly comes to the conclusion that cause of action also stated in the plaint and the Court has to see only the plaint averments and the same is also a settled position of law and the Court has to look into only the averments of the plaint whether it constitutes cause of action or not and not the defence. The judgments relied upon by the counsel for the petitioners not applicable to the case on hand when the cause of action has been narrated in the plaint itself. The other contention of the counsel for the petitioners is that by producing the document of Power of Attorney, no power is given to file a suit under GPA and the same also cannot be accepted when the Trial Court also taken note of Clause 16 of the GPA where it is mentioned to cancel any deed pertaining to the mentioned properties executed by her at the misguidance of her brothers. The case of the plaintiff that by misrepresentation only her brothers have obtained the said document and hence, the said contention is a matter of trial. The other contention is that the plaint is not signed by each page. No doubt, on perusal of the plaint, each page has not been signed. But the plaint has been signed including verification hence, the contention that not signed each page cannot be a ground to dismiss the plaint at the 19 threshold. Hence, I do not find any merit in the revision petition and the order passed by the Trial Court will not suffers from any legality and correctness and the matter has to be adjudicated and it requires a trial. Hence, I answer point No.1 as negative. Point No.2:
25. In view of the discussions made above, I pass the following: ORDER
The revision petition is dismissed. Sd/- JUDGE SN