C. Jothirlingam v. S.R. Jayaraman

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED:08.01.2008CORAMTHE HONOURABLE Mr. JUSTICE A.C.ARUMUGAPERUMAL ADITYANCivil Revision Petition (NPD) No.1399 of 2006andM.P.Nos.1 and 2 of 20061. C.Jothirlingam2. J.Yuvarani3. J.Vidhya4. Minor J.Arul Usha Nandhini5. Minor J.Gurusubramani All the petitionerns are represented by their General Power of Attorney J.Revathy... Petitioners / Plaintiffs Vs.1.S.R.Jayaraman2. J.Nagarathinam... Respondents/ Defendants 2 & 3Civil Revision Petition is filed under Section 115 of CPC,to against the fair and decretal order dated 17.7.2006 made inI.A.No.1981 of 2005 in O.S.No.1138 of 2005 on the file theFirst Additional District Munsif,Salem.For Petitioners : : Mr.K.Doraisami, Senior Advocate For M/s Kandavadivel DoraisamiFor respondents : : Mr.D.Shivakumaran,Advocate O R D E R The order passed in I.A.No.1981 of 2005 in O.S.No.1138 of2005 on the file of the First Additional District Munsif, Salemis under challenge before this Court in this revision petition.The said application was filed under Order 7 Rule 11(B) CPC toreject the plaint in limini as not maintainable since the suitis under valued. After contest, the learned trial Judge has heldthat the Court fee paid under Section 25(d) of the Tamil NaduCourt Fees and Suit Valuation Act 1955( hereinafter referred to https://hcservices.ecourts.gov.in/hcservices/ as "the said Act") is not correct and the Court Fee ought tohave been paid under Section 40 of the said Act since the valueof the subject matter of the suit is Rs.30,00,000/-.2. Mr.K.Doraisami, the learned Senior Counsel appearing forthe revision petitioners would contend that the plaintiffs havefiled the suit on the ground that the impugned sale deedexecuted by their power of attorney agent one year after thecancellation of the power dated 24.7.2004 is not valid under lawand that only for cancellation of the said sale deed , they hadfiled a suit , paying the Court fee under Section 25(d) of thesaid Act. Section 25(d) of the said Act reads as follows:"In a suit for a declaratory decree ororder, whether with or without consequentialrelief not falling under Section 26-a. . . . . . . . . . . b. . . . . . . . . .. c. . . . . . . . . . .d. In other cases, whether the subject-matter of the suit is capable of valuationor not,fee shall be computed on the amountat which the relief sought is valued in theplaint or on (rupees one thousand) whichever is higher."On the other hand, Section 40 of the said Act says that " In asuit for cancellation of a decree for money or other propertyhaving a money value, or other document which purports oroperates to create, declare, assign, limit or extinguish,whether in present or in future, any right, title or interest inmoney, movable or immovable property, fee shall be computed onthe value of the subject matter of the suit, and such valueshall be deemed to be -If the whole decree or other document issought to be cancelled, the amount or value of the property forwhich the decree was passed or other document was executed;If apart of the decree or other document is sought to be cancelled,such part of the amount or value of the property(2) If thedecree or other document is such that the liability under itcannot be split up and the relief claimed relates only to aparticular item of property belonging to the plaintiff or to theplaintiff's share in any such property, fee shall be computed onthe value of such property or share or on the amount of thedecree , whichever is less. Explanation: A suit to set aside anaward shall be deemed to be a suit to set aside a decree withinthe meaning of this Section. Sub Section (2) and explanationsare new". Admittedly, the plaintiffs have filed a suit forcancellation of sale deed relating to the plaint scheduleproperty which was sold to a third party for a sum ofRs.30,00,000/-. https://hcservices.ecourts.gov.in/hcservices/

3. Under such circumstances, I am of the view that theplaintiffs have to pay the Court fee under Section 40 of thesaid Act since the plaintiffs have sought for cancellation ofa document viz., sale deed said to have been executed by theirpower of attorney agent , after the cancellation of the powerfor a sum of Rs.30,00,000/-.4. Mr.D.Shivakumaran, the learned counsel appearing for therespondents relying on a decision reported in Chellakannu-vs-Kolanji(2005(5) CTC 190) would contend that in a case ofsimilar facts ,this Court has held at paragraph 15 as follows:" The allegation on the plaint in substanceamounts to cancellation of the document.Though the prayer is couched in the form ofseeking declaration that the document is notvalid and not binding, the relief insubstance indirectly amounts to seeking forcancellation of the sale deed. LearnedDistrict Munsif is right in ordering paymentof Court fee under Section 40 of the Act."The above decision in all four corners will be applicable tothe present facts of the case too. 5. The learned trial Judge, after an elaborate discussionon the question of payment of Court fee has come to a correctconclusion that the plaintiffs ought to have paid the Court feeunder Section 40 of the said Act and directed the plaintiffs topay the Court fee on the value of Rs.30,00,000/- for the plaintschedule property and to pay the Court fee under Section 40 ofthe said Act, giving two months time with a condition that thefailure to comply with the conditional order, the plaint shallbe rejected. The learned trial Judge, after coming to theconclusion that the Court Fee paid under Section 25(d) of thesaid Act is in correct , ought to have returned the plaint tothe plaintiffs for proper representation before the appropriateforum after paying the Court fee under Section 40 of the saidAct. 6. In fine, the civil revision petition is allowed withthe following modification. https://hcservices.ecourts.gov.in/hcservices/ The plaint is ordered to be returned to the plaintiffs for re-presentation before the appropriate forum, after payingnecessary Court Fee for the suit value of Rs.30,00,000/- underSection 40 of the said Act. Time for re-presentation before theappropriate forum two months from this date. The learned Courtbelow has to return the plaint to the plaintiffs within one weekfrom the date of receipt of a copy of this order. No costs.Consequently, connected M.P.Nos.1 and 2 of 2006 are closed.SgSd/Asst.Registrar/true copy/Sub Asst.RegistrarTo1. The first Additional District Munsif, Salem2. The Section Officer, V.R.Section, High Court, MadrasCRP(NPD)No.1399/2006KSJ(CO)SR/8.1.2008