Judgment:
Civil revision petition filed against the fair and decreetal order dated 25.01.2012 passed in I.A.No.12374 of 2011 in O.S.No.13709 of 2010 on the file of the III Asst.City Civil Court, Chennai.
ORDER
1. Inveighing the order dated 25.01.2012 passed in I.A.No.12374 of 2011 in O.S.No.13709 of 2010 by the III Assistant City Civil Judge, Chennai, this civil revision petition is focussed.
2. The parties are referred to hereunder according to their litigative status and ranking before the lower Court.
3. A re'sume' of facts absolutely necessary and germane for the disposal of this revision would run thus:
The respondent/plaintiff filed the suit seeking the following reliefs:
"(a) To declare the Sale Deed dated 07.05.2008 registered as Document NO.1629 of 2008 at Sub Registrar Office, Kodambakkam, as sham, null and void and not binding on the Plaintiff;
(b) For permanent injunction restraining the defendant, his men, agents, servants, assigns, legal heirs, etc or anyone claiming under the defendant from alienating, encumbering or in any way deal with the schedule mentioned property to any third party in any manner whatsoever." (extracted as such)
4. After entering appearance in the suit, the revision petitioner/defendant filed I.A. under Order VII Rule 11(b) of CPC for rejecting the plaint, on the main ground that as per Section 40 of the Tamil Nadu Court Fees and Suit Valuation Act the suit was not valued, even though there was categorical admission in the plaint to the effect that the petitioner executed the document and got it registered; however she pleaded that she was lulled the belief by the defendant as though she was executing only a power of attorney. According to the defendant, she was bound to pay the Court fee under Section 40 of the Tamil Nadu Court Fees and Suit Valuation Act, so to say, ad valorem Court fee on the market value of the suit property.
5. The application was resisted by the plaintiff on the main ground that she pleaded fraud and she never admitted in categorical terms that she consciously executed the sale deed in favour of the defendant and in such a case, she cannot be muclted with the liability to pay ad valorem court fee on the market value of the suit property under Section 40 of the Act. As per plaintiff, possession of the property was not handed over under the alleged sale deed; and in such a case, the plaintiff was justified in not valuing the suit under Section 40 of the Tamil Nadu Court Fees and Suit Valuation Act. The learned counsel for the plaintiff would contend that the lower Court appropriately and correctly dismissed the application, warranting no interference in the revision.
5. The point for consideration is as to whether the plaintiff should pray for cancellation or setting aside the sale deed dated 07.05.2008 and pay court fee under Section 40 of the Tamil Nadu Court Fees and Suit Valuation Act?
6. At the outset, I would like to fumigate my mind with the precedents relating to the issue involved in this case.
7. On the respondent/plaintiff side, the following decision of this Court has been cited.
(1979) 2 MLJ 8 [Alamelu Alias Chinnakannammal and others v. Manickkammal]; certain excerpts from it would run thus:
"7. Having regard to the way in which the suit has come to be filed in the present case, it is clear that the plaintiff did not admit at any time that the document was executed by her or that she was a party to the document. Her case is that the document was a forged one. Forged documents would not confer title on any person and it would be unnecessary to get the document set aside in order to succeed in the prayer for declaration. The payment of Court-fee is to be adjudged on the plaint allegations. Whether the allegation of forgery is correct or not will have to be gone into in the suit. Nothing in this judgment will be taken as concluding that issue. In the circumstances of this case, I am satisfied that the suit was properly valued and the civil revision petition is accordingly dismissed. No order as to costs."
8. Whereas, on the side of the petitioner/defendant, the decision of this Court reported in 2005 (4) CTC 197 [Chellakannu v. Kolanji] has been cited:
9. At this juncture, my mind is redolent and reminiscent of the decision of this Court reported in 2005(5) CTC 190 CHELLAKANNU, SON OF PICHAMUTHU VS. KOLANJI, certain excerpts from it would run thus:-
"12. The word "Cancellation" implies that the persons suing should be a party to the document. Strangers are not bound by the documents and are not obliged to sue for cancellation. When the party to the document is suing, challenging the document, he must first obtain cancellation before getting any further relief. Whether cancellation is prayed for or not or even it is impliedly sought for in substance, the Suit is one for cancellation. In the present case, when the plaintiff attacks the Sale Deeds as having been obtained from him under fraud and mis-representation the plaintiff cannot seek for any further relief without setting aside the sale Deeds.
13. Contending that the Plaint averments are to be the guiding factor in determining the question of Court Fee, learned counsel for the Revision petitioner has relied upon the decisions Neelavathi and others v. N.Natarajan and others, AIR 1980 SC 691 and Virudambal and four others v. Kandasamy and our others, 200(2) CTC 263. Those cases relate to partition suits. In partition suits, it is settled law that the question of Court fee must be considered in the light of the allegations made in the plaint and the decision cannot be influenced either by the pleas in the Written statement or the final decision of the suit on merits. The above principles applicable in a partition suit cannot be applied to the case in hand where astuteness is employed by the plaintiff to evade payment of proper Court Fee. The plaint allegations cannot be accepted as it is. As discussed earlier, though the plaintiff has averred that the sale Deeds are not binding on him, being a party to the suit, in substance the suit is one for cancellation of the sale Deeds.
14. In support of his contention that Court Fee payable is under Section 40 of the Act only in a suit for cancellation of the document, learned counsel for the Revision Petitioner has relied upon the decision Vellayya Konar and another v. Ramaswami Konar and another, AIR 1939 Mad.894, wherein it has been held that the Court fee is payable only under Article 17-A and not under Section 7(iv-A) (Court Fees Act, 1870). The said suit was brought by Creditor under Section 53 of the Transfer of Property Act for declaration that an alienation by the debtor is void against creditors. In other words, the said suit has been filed by the creditor, who was not a party to the documents to the alienation in question. In that view of the matter, it was held that the Court fee is not payable under Section 7(iv-A) of the said Act. The case in hand stands on a different footing. The plaintiff, who is a party to the document himself seeks to get rid of the documents executed by him and hence, Court fee is to be paid under Section 40 of the Act."
10. A mere running of the eye over those precedents would highlight and spotlight the fact that if the plaint averments disclose that the plaintiff signed the document and got it registered, mere pleading that such signature was put under the misconception or misrepresentation would not take away the case out of the purview of Section 40 of the Tamil Nadu Court Fees and Suit Valuation Act.
11. Here, the learned counsel for the revision petitioner/defendant appropriately and appositely, legally and correctly would draw the attention of this Court to paragraph No.7 of the plaint and the relevant portion is extracted hereunder:
"7 ....... ......... Believing in and on faith of the representations made by the defendant, plaintiff had accompanied the defendant to the register office during the first week of May 2008 and executed documents as dictated by the defendant without any reservations.
12. I could see considerable force in the submission made by the learned counsel for the petitioner/defendant. In fact, the ratio decidendi relied on by the learned counsel for the respondent/plaintiff as found exemplified in Alamelu Alias Chinnakannammal and others v. Manickkammal's case (cited supra), is not in any way helping the plaintiff, because there the factual matrix would demonstrate and display that the executant at the time of registration got awakened and refused to agree for registration of the settlement deed and her plea, at that time itself was that he affixed her thumb impressions in blank papers with the authorisation to convert those
blank papers as a Will and not as a settlement deed; whereupon, the Court appreciably held that such a party should not be mulcted with the liability to pay ad valorem court fee on the market value, but here as has been distinguished above, the factual scenario is entirely different. Hence the lower Court au fait with law and au courant with facts legally rejected the application.
13. The learned counsel for the respondent/plaintiff would submit that simply because appropriate court fee was not paid, the plaint cannot be rejected.
14. At this juncture, I would like to point out that due opportunity should be given to the plaintiff to get the plaint amended by incorporating the appropriate prayer for cancellation or setting aside the impugned sale deed and also by amending the value of the suit as per Section 40 of the Act and pay necessary Court fee; for the aforesaid purpose, time could be granted. Accordingly, this revision is ordered setting aside the order of the lower Court, with the above directions. The plaintiff shall do well to see that the plaint is got amended as above mandated and appropriate court fee paid by