Madras High Court
K. Balan vs Pushpa on 13 September, 2007
Author: A.Selvam
Bench: A.Selvam
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 13/09/2007 CORAM THE HONOURABLE Mr.JUSTICE A.SELVAM Civil Revision Petition NPD No.713 of 2006 1. K. Balan 2. Veerammal ... Petitioners vs 1. Pushpa 2. Valarmathi 3. Balakrishnan ... Respondents Civil Revision Petition against the fair and decretal order dated 20/2/2006 passed in Check Slip No.1538/27/S in Original Suit No.271 of 2004 on the file of the District Munsif Court, Kulithalai. !For petitioners ... Ms.Maria Roseline for Mr.K.Prabhakar ^For respondents ... Mr.K.Govindarajan for R.1. Mr.K.Srinivasan for R.R.2 and 3. :ORDER
Challenge in this Civil Revision Petition is to the order dated 20/2/2006 passed in Check Slip No.1538/27/S in Original Suit No.271 of 2004 by the District Munsif Court, Kulithalai.
2. The revision petitioners herein as plaintiffs have instituted the Original Suit No.271 of 2004 on the file of the District Munsif Court, Kulithalai praying to declare that the sale deed dated 15/5/2000 executed in favour of the first defendant is null and void and also for consequential relief of recovery of possession.
3. The Court Fee Examiner, Southern Division, High Court Madras has scrutinised the Court fee paid on the plaint and ultimately found that the revision petitioners/plaintiffs are liable to pay Court fee under Section 40 of the Tamil Nadu Court Fees Suits and Valuation Act and to that effect, Check Slip in question has been issued. The District Munsif Court, Kulithalai after getting objection to the Check Slip in question has passed the impugned order and thereby directed the revision petitioners/plaintiffs to pay Court fee under Section 40 of the Tamil Nadu Court Fees Suits and Valuation Act. Against the order passed by the Court below, the present Civil Revision Petition has been filed.
4. Before considering the rival submissions made by either counsel, it would be apropos to narrate the essential averments made in the plaint. It is averred in the plaint that the revision petitioners/plaintiffs are the absolute owners of the suit property and they desired to effect construction after getting approval from Panchayat and the same has also been obtained on 25/5/1999 and the first defendant has taken the sale deed in question purely on misrepresentation and the revision petitioners/plaintiffs have not intended to sell the suit property and therefore, the sale deed obtained by the first defendant is null and void. Under the said circumstances, the present suit has been instituted for the reliefs indicated above.
5. The learned counsel appearing for the revision petitioners/plaintiffs has repeatedly contended that the plaintiffs are Keralites and they do not know Tamil and the first defendant has obtained the sale deed in question by making misrepresentation to the effect that the document in question is a mortgage deed and in order to declare the alleged sale deed as null and void, the present suit has been instituted for the reliefs of declaration and recovery of possession and the revision petitioners/plaintiffs have rightly paid the Court fee under Section 25 (d) of the Tamil Nadu Court Fees and Suits Valuation Act. But the Check Slip in question has been erroneously issued and the same has also been erroneously accepted by the Court below and the revision petitioners/plaintiffs need not pay Court fee under Section 40 of the said Act. Therefore, the order passed by the Court below is liable to be set aside.
6. In support of the contention raised on the side of the revision petitioners/plaintiffs, the decision reported in 2002 (2) CTC - 513 9V.R.GOPALAKRISHNAN Vs. ANDIAMMAL), has been relied upon wherein the legal position has been summed up as follows:
"When a suit is filed seeking a decree to set aside the sale, Court fee has to be paid on the market value of the property on the date of filing of the suit. Further, if a plea is raised that the signature was obtained in a blank paper or that some misrepresentation was made and thereby fraud was played on the executor, then Court fee need not be paid for setting aside the same."
7. In order to controvert the argument advanced by the learned counsel appearing for the revision petitioners/plaintiffs, the learned counsel appearing for the respondents/defendants has also equally contended that the specific case of the revision petitioners/plaintiffs is that the sale deed dated 15/5/2000 is null and void and to that effect, the relief of declaration has been sought for and the relief of declaration includes the relief of cancellation and therefore, the revision petitioners/plaintiffs are bound to pay Court fee under Section 40 of the Tamil Nadu Court fees and Suit Valuation Act, 26 of 1955 and therefore, the order passed in Check Slip in question by the Court below is perfectly correct and the same needs no interference and altogether, the present Civil Revision Petition deserves dismissal.
8. In support of the contention raised on the side of the respondents/defendants, the decision reported in (2005) 3 M.L.J. - 289 (CHELLAKANNU, SON OF PICHAMUTHU, VETHIYAR VETTU VILALGE, UDAYARPALAYAM TALUK VS. KOLANJI, WIFE OF SHANMUGAM, VETHIYAR VETTU VILLAGE, UDAYARPALAYAM TALUK) is relied upon wherein this Court has held that "The plaintiff himself is a party to the sale deed when the party himself seeks to get rid of the sale deed in substance it amounts to cancellation of deed. The plaintiff might seek to avoid the sale deed if he is not a party to the same. But since the plaintiff himself is a party to the sale deed before he is suing for any relief, the plaintiff must first obtain the cancellation of the sale deed and further, it is held that when the plaintiff is a party to the document under challenge, no further relief can be obtained without cancellation of the document by payment of Court fees under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act, 26 of 1955.
9. In fact, this Court has perused the entire decision referred to earlier, wherein also the similar stand of misrepresentation has been taken in respect of the document in question. This Court after considering various decisions has found that the plaintiff therein must pay Court Fee under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act. In the light of the decision referred to earlier, it is made clear to the Court that when the plaintiff is a party to a document and if he refutes it subsequently, he ought to have paid Court fee under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act and further, it is also made clear that the relief of declaration also includes cancellation and for cancellation of a particular document, necessary Court fee should be paid under the said Section.
10. In the instant case, the specific contention of the revision petitioners/plaintiffs is that the sale deed dated 15/5/2000 has been obtained by making representation. If that be the case of the revision petitioners/plaintiffs, definitely, they ought to have paid Court fee under Section 40 of the said Act. Further, the relief of declaration sought for in the plaint also includes the relief of cancellation. Therefore, it goes without saying that only for the purpose of avoiding payment of Court fees under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act, the relief of declaration alone has been sought for. Even though the relief of declaration has alone been sought for since the same includes the relief of cancellation definitely, the revision petitioners/plaintiffs should pay Court fee under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act and further, the decision relied upon by the revision petitioners/plaintiffs is of the year 2002. But the decision relied upon by the respondents/defendants is of the year 2005. Further, it is not an exaggeration to say that in the decision relied upon by the respondents/defendants, various decisions have been relied upon, so as to come to a correct legal position. Therefore, this Court is in a position to follow the same. In view of the foregoing elucidation of both the factual and legal premise, this Court has not found any valid force in the argument advanced by the learned counsel appearing for the respondents/plaintiffs and whereas the argument advanced by the learned counsel appearing for the respondents/defendants is really having subsisting force.
11. In fine, this Civil Revision petition deserves dismissal and accordingly is dismissed at the stage of admission without costs. The order passed in Check Slip No.1538/27/S in Original Suit No.271 of 2004 by the District Munsif Court, Kulithalai is confirmed. Consequently, the connected Miscellaneous Petition No.1 of 2006 is also dismissed.
To The District Munsif Court, Kulithalai.
mvs.