Andhra Pradesh High Court - Amravati
Baddukonda Adhilakshmi vs Baddukonda Padmavathi on 15 November, 2022
HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
CIVIL REVISION PETITION No.2198 of 2022
Between:
Baddukonda Adhilakshmi, W/o.late Mohana Rao,
aged 61 years, Household duties,
R/o D.No.26-226, Kusumaguddi Veedhi,
parvathipuram, Parvathipuram Manyam District.
... Petitioner
Versus
Baddukonda Padmavathi, W/o.late Mohana Rao,
aged 47 years, R/o D.No.1-4-6, Kothavalasa,
Parvathipuram, Parvathipuram Manyam District.
... Respondent
Counsel for the petitioner : Smt. T.V.Sridevi
Counsel for respondent : --
ORDER:
Plaintiff who filed unnumbered suit in GR No.1203 of 2022 on the file of the II Additional District Judge, Parvathipuram, filed the above revision under Article 227 of the Constitution of India.
2. The suit is filed for cancellation of preliminary decree dated 04.06.2019 passed in O.S No.27 of 2017 on the file of the II Additional District Judge, Parvathipuram in favour of the 2 defendant and against the deceased husband of the plaintiff.
According to the plaintiff, the decree was obtained by playing fraud. The suit filed for cancellation of decree is valued at Rs.1,02,03,380/-.
3. Office raised objection regarding maintainability of the suit by returning the plaint by raising the following objections (1) CF not paid (2) How the suit is maintainable to cancel the decree of the same court (3) In the final decree it was mentioned no legal heirs and steps were recorded. How this suit is maintainable to add the legal heirs. On 1-7-2022, the objections were complied with by clarifying the objections.
4. Office again returned the same on 07.07.2022 with an objection to explain how the suit is maintainable for cancellation of decree since the plaintiff is not party to the decree and judgment in O.S No.27 of 2017 and the same was represented on 12.07.2022. Again it was returned on 18.07.2022 with an endorsement that plaintiff is not party to the proceedings, hence suit for cancellation not maintainable. The same was represented on 22.07.2022.
35. Office again returned on 30.07.2022 with an endorsement that Court fee shall be assessed correctly as third party seeking cancellation of decree. It was represented on 03.08.2022 by placing reliance upon the judgment of Hon'ble Apex Court in Satheedevi vs. Prasanna1. It was returned on 06.08.2022 with an endorsement that the citation i.e. Suhrid Singh vs. Randhir Singh shall be filed.
6. It was represented on 10.08.2022. Again it was returned on 24.08.2022 with an endorsement that the plaintiff is directed to file law laid down in Maddi Bal Reddy vs. Merugu Ananthamma2. The same was represented on 27.08.2022 by placing reliance upon the judgments in Allam Venkateswara Reddy vs. Golla Venkatanarayana3 and in Polamarasetti Manikyam and others vs. Theegala Venkata Ramanayya and Others4.
7. Office returned the same on 05.09.2022 with an endorsement that there was amendment in the State of Punjab and the same is entirely different from the State of A.P and 1 2010 SC 2777 2 2005(1) AnWR 62 3 AIR 1975 AP 122 4 2014 (5) SCC 603 4 therefore, the law laid down in the case of Maddi Bal Reddy was holding the field.
8. Again it was represented by clarifying the objections on 07.09.2022. Without considering the same, office was again returned on 12.09.2022 with an endorsement that there is no proper compliance of the return dated 05.09.2022 with regard to the Suhrid Singh's case (referred supra).
9. It was represented on 14.09.2022 by clarifying that the plaintiff is filing the suit as a legal representative of her husband and claiming right under her husband and she is not claiming any independent right or interest over the suit property and as such, the plaintiff being the legal heir of her husband can be considered as a party to the suit O.S.No.27 of 2017 which decree is sought to be cancelled through the suit on hand.
10. On 20.09.2022 again it was returned saying that the objection dated 05.09.2022 was not complied with. Learned counsel represented the same on 22.09.2022 and clarified the objection. However, it was again returned on 11.10.2022 with an objection that the objection dated 05.09.2022 is not complied with. Hence, present revision is filed.
511. Heard Smt T.V.Sri Devi learned counsel appearing for petitioner.
12. The un-numbered suit as stated supra was filed for cancellation of preliminary decree dated 04.06.2019 in O.S.No.27 of 2017 on the file of the II Additional District Judge, Parvatipuram. Court fee was paid under Section 37(1)(a) of A.P.Court Fee & Suits Valuation Act, 1956 and the suit is valued at Rs.1,02,03,380/-. The Court fee was paid on that value.
13. In Polamarasetti Manikyam's case (referred supra), the Hon'ble Apex Court was considered Section 37 of the A.P.Court Fee & Suits Valuation Act, 1956. The observation of the Hon'ble Apex Court is as under:
"10. When the matter came up for hearing, the learned counsel for either side brought to our knowledge a judgment of this Court in Satheedevi [(2010) 5 SCC 622 :
(2010) 2 SCC (Civ) 490] and submitted that a similar issue came up for consideration in the abovementioned case while interpreting Section 40 of the Kerala Court Fees and Suits Valuation Act, 1959, which is in pari materia with Section 37 of the Andhra Pradesh Court Fees and Suits Valuation Act, 1956.6
11. While interpreting the scope of Section 40 of the Kerala Act, this Court in Satheedevi case [(2010) 5 SCC 622 : (2010) 2 SCC (Civ) 490] had the occasion to examine the ratio laid down by the Full Bench of the Madras High Court in Kolachala Kutumba Sastri [(1939) 49 LW 566 : AIR 1939 Mad 462] and took the view that in the said case, the Madras High Court was primarily concerned with the interpretation of Section 7(iv-a) of the Court Fees Act, as amended by the Madras Act, which refers to the value of the property simpliciter and the Court interpreted the same as market value. It was pointed out that the Full Bench was not called upon to interpret a provision like Section 40 of the Act. Consequently, it was held that the ratio of that judgment cannot be relied upon for the purpose of interpretation of Section 40 of the Act (see para 39 of Satheedevi case [(2010) 5 SCC 622 : (2010) 2 SCC (Civ) 490] ). While doing so, the Court in Satheedevi case [(2010) 5 SCC 622 : (2010) 2 SCC (Civ) 490] also opined that the Division Bench judgments of the Kerala High Court in Krishnan Damodaran v. Padmanabhan Parvathy [1972 KLT 774] , P.K. Vasudeva Rao v. K.C. Hari Menon [AIR 1982 Ker 35] , Pachayammal v. Dwaraswamy Pillai [(2006) 3 KLT 527] and the learned Single Judge judgments in Appikunju Meerasayu v. Meeran Pillai [1964 KLT 895] and Uma Antherjanam v. Govindaru Namboodiripad [1966 KLT 1046] do not lay down the correct law since the High Court had failed to appreciate that the legislature has designedly used a different language in Section 40 of the Act and the term "market value" has not been used therein.
712. We have already indicated that Section 40 of the Kerala Act and Section 37 of the Court Fees Act are pari materia provisions. Consequently, the reasoning of this Court in Satheedevi [(2010) 5 SCC 622 : (2010) 2 SCC (Civ) 490] could be safely applied when we interpret Section 37 of the Court Fees Act. (emphasis is mine)
13. In Satheedevi [(2010) 5 SCC 622 : (2010) 2 SCC (Civ) 490], this Court while interpreting Section 40 of the Kerala Act held as follows : (SCC pp. 630-31, paras 17-
20) "17. Section 40 deals with suits for cancellation of decrees, etc. which are not covered by other sections. If this section is interpreted in the light of the expression 'save as otherwise provided' used in Section 7(1), it becomes clear that the rule enshrined therein is a clear departure from the one contained in Section 7 read with Sections 25, 27, 29, 30, 37, 38, 45 and 48 which provide for payment of court fee on the market value of the property. In that sense, Section 40 contains a special rule.
18. Section 40(1) lays down that in a suit for cancellation of 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 the 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 further lays down that such value shall be deemed to be, if the whole decree or other document sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed.
8If a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property constitute the basis for fixation of court fee. Sub-section (2) lays down that 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 the property belonging to the plaintiff or the plaintiff's share in such property, fee shall be computed on the value of such property, or share or on the amount of the decree, whichever is less.
19. The deeming clause contained in the substantive part of Section 40(1) makes it clear that in a suit filed for cancellation of a document which creates any right, title or interest in immovable property, the court fee is required to be computed on the value of the property for which the document was executed. To put it differently, the value of the property for which the document was executed and not its market value is relevant for the purpose of court fee. If the expression 'value of the subject-matter of the suit' was not followed by the deeming clause, it could possibly be argued that the word 'value' means the market value, but by employing the deeming clause, the legislature has made it clear that if the document is sought to be cancelled, the amount of court fee shall be computed on the value of the property for which the document was executed and not the market value of the property. The words 'for which' appearing between the words 'property' and 'other documents' clearly indicate that the court fee is required to be paid on the value of the property mentioned in the document, which is the subject-matter of challenge.
920. If the legislature intended that fee should be payable on the market value of the subject-matter of the 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 the value of subject-matter, specifically provided for payment of court fee on the market value of the subject-matter of the suit as has been done in respect of other types of suits mentioned in Sections 25, 27, 29, 30, 37, 38, 45 and 48. The legislature may have also, instead of using the expression 'value of the property for which the document was executed', used the expression 'value of the property in respect of which the document was executed'. However, the fact of the matter is that in Section 40(1) the legislature has designedly not used the expression 'market value of the property'."
14. Applying the above reasoning, this Court in Satheedevi [(2010) 5 SCC 622 : (2010) 2 SCC (Civ) 490] upheld the view expressed by the learned Single Judge of the Andhra Pradesh High Court in Allam Venkateswara Reddy v. Golla Venkatanarayana [AIR 1975 AP 122] and the Division Bench judgments of the Madras High Court in Dantuluri Venkata Narasimha Raju v. Dantuluri Chandrayya [(1927) 26 LW 159 : AIR 1927 Mad 825] , Navaraja v. Kaliappa Gounder [(1967) 80 LW (SN) 19 (Mad)] and Arunachalathammal v. Sudalaimuthu Pillai [(1970) 83 LW 789 (Mad)] and ruled that those judgments have laid down the correct law.
1015. This Court in Satheedevi [(2010) 5 SCC 622 : (2010) 2 SCC (Civ) 490] , therefore, gave its seal of approval to the judgment of the learned Single Judge of the Andhra Pradesh High Court in Allam Venkateswara Reddy [AIR 1975 AP 122] , wherein the learned Single Judge took the view that in a suit for cancellation of sale deed which was executed for a specified amount, the court fee has to be paid on that amount and not on the basis of the market value of the property at the presentation of the plaint.
16. The Andhra Pradesh High Court in the impugned judgment, while interpreting Section 37 of the Court Fees Act, placed reliance on the Division Bench judgment in Lakshminagar Housing Welfare Assn. [(2010) 5 ALT 96] , wherein the Bench, as already indicated, placed reliance on the Full Bench judgment of the Madras High Court in Kolachala Kutumba Sastri [(1939) 49 LW 566 : AIR 1939 Mad 462] , though a reference was made to the learned Single Judge Bench judgment in Allam Venkateswara Reddy [AIR 1975 AP 122] . Since we are in agreement with the reasoning in Satheedevi [(2010) 5 SCC 622 :
(2010) 2 SCC (Civ) 490] , which has given its seal of approval to the reasoning of the learned Single Judge judgment of the Andhra Pradesh High Court in Allam Venkateswara Reddy [AIR 1975 AP 122] , the judgment of the Division Bench in Lakshminagar Housing Welfare Assn. [(2010) 5 An LT 96] is no more good law."
14. In view of the law laid down by the Hon'ble Apex Court, returning of the plaint by the Court below to comply with the objections, more particularly the objection dated 05.09.2022, in 11 spite of his compliance is unwarranted. Nearly 10 times the suit was returned by raising the same objection. Inspite of clarification, office returned the same. In fact, this Court has gone through the return endorsement and the compliance. On every occasion, unlike a routine compliance normally endorsed, it was specifically clarified regarding the rule position by placing reliance on the judgment of Hon'ble Apex Court. Even copies of the judgments are placed. Inspite of the same, returning the plaint with the same objection is unwarranted and such practice is deprecated.
15. In view of the above discussion, the suit valuation and court fee paid is in accordance with the relief sought. Objection, if any, regarding the suit valuation raised by defendants, upon their appearing, the same shall be considered at appropriate stage. Court is always at liberty to deal with suit valuation basing on the material placed by the defendants before the Court.
16. The Court below shall number the suit if it is otherwise in order within a period of one week from the date of receipt of a copy of order and proceed with the matter in accordance with law.
1217. With the above direction, the Civil Revision Petition is disposed of. No order as to costs.
As a sequel, all the pending miscellaneous applications shall stand closed.
_________________________ SUBBA REDDY SATTI, J Date : 15.11.2022 KA 13 218 HONOURABLE SRI JUSTICE SUBBA REDDY SATTI CIVIL REVISION PETITION No.2198 of 2022 Date : 15.11.2022 KA