This Product is Licensed to Mr. R.

Venkatesan, Advocate, Coimbatore

Citation : CDJ 2018 MHC 8468

Head Note :
Constitution of India - Article 227 -

Judgment :

(Prayer: Civil Revision Petition filed under Article 227 of the Constitution of India pleased to against
the order dated 07.01.2018 passed by the District Munsif, Alandur in [Link].13022 of 2018.)

1. This Civil Revision petition has been filed by the petitioner / plaintiff, challenging the order, dated
07.01.2018 passed in O.S.(SR) No.13022 of 2018 by the learned District Munsif, Alandur, wherein
the plaint filed by the petitioner / plaintiff was returned for the payment of Court fee Under Section
40 of Tamil Nadu Court Fee and Suit Valuation Act. Originally, suit has been filed by the petitioner /
plaintiff, before the Principal District Munsif, Alandur, for cancelling the settlement deed, dated
13.06.2016, executed by the petitioner to the respondent and registered as Document No.6448 of
2016, on the file of Sub-Registrar's Office at Pallavaram and for other ancillary reliefs.

2. When the plaint was sought to be filed, the same was returned by the Court below stating that the
plaint is returned for paying proper court fee under Section 40 of the Tamil Nadu Court Fees and
Suits Valuation Act. The said order reads thus:-

"1. The relief sought for in the suit is a) a Cancellation of the deed of Settlement dated 13.06.2016,
registered as Document No.6448 of 2016 n the file of Sub-Registrar's Office at Pallavaram, at
Rs.5000/- and a Court of Rs. /- is paid under section 40 of Tamil Nadu Court Fees and suit Valuation
Act as the Value of the property being the consideration for transfer of property as mentioned in
settlement deed is love and affection and is incapable of valuation. b) the relief of Mandatory
Injection directing the defendant to return the original title deeds of the suit property which were
delivered to him by the plaintiff at the time of execution of the alleged settlement deed dated
13.06.2016, registered as document No.6448 of 2016 on the file of Sub-Registrar's Office at
Pallavaram; at of Tamil Nadu Court Fees and suit Valuation Act. c) the relief of permanent injunction
restraining the defendants, his men, agents, servants or any person claiming through them from
encumbering, alienating or in any manner dealing with the suit property based on the Settlement
dated 13.06.2016, registered as Document No.6448 of 2016 on the file of Sub-Registrar's Office at
Pallavaram executed by plaintiff, is valued at Rs.5000/- and the plaintiff pays a sum of Rs.30/- Under
Section 27 (c) of T.N.C.F and Suit Valuation Act."

3. Further, the operative portion of the order reads as follows:-

“17. The further stand taken by the plaintiff was that the sale deeds were obtained from him under
fraud and hence, 14 suit had been filed for declaration that the sale deeds were not binding on the
plaintiff and since the suit was not filed for cancellation of the sale deeds, the defendants could not
insist the plaintiff to pay the court fee under section 40 of the Act. The trial Court recorded a find that
the sale deeds had been executed by the plaintiff himself and prima facie the sale deeds as invalid, it
tanta mounts to seeking cancellation of sale deeds and therefore, court fee payable would be
governed by section 40 of the Act. 18. The High Court posted two questions, namely, (i) whether in
the suit filed for Declaration that the sale deeds are invalid, Court fee paid under section 25(d) of the
Act is incorrect and (ii) whether the impugned order directing the plaintiff to pay the Court Fee under
Section 40 of the Act suffers from any infirmity warranting interference. Dealing with the factual
matrix, the High Court observed: "Thus, the plaintiff himslef is a party to the sale deed; when the
party himself seeks to get rid of the sale deeds in substance it amounts to cancellation of decree. The
plaintiff might seek t avoid the Sale Deeds. But, since the plaintiff himself is a party to the sale deeds
before he is suing for any relief, the plaintiff must first obtain the cancellation of the Sale Deeds" and
again "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. The allegation on the plaint in substance
mounts to cancellation of the document. Though the prayer is couched in the from of seeking
declaration that the document is not valid and not binding, the relief in substance indirectly amounts
to seeking for cancellation of the Sale Deed. Learned District Munsif was right in ordering payment
of Court Fee under Section 40 of the Act. This Revision Petition has no merits and is bound of fail".
Being of this view, the High Court dismissed the Civil Revision and directed the plaintiff to pay
Court fee with further stipulation hat unless paid, plaint would stand rejected.

Therefore, in the light of above referred Apex Court citation, the plaint is returned for proper Court
fee Under Section 40 of Tamil Nadu Court Fee and Suit Valuation Act.

Time one month.”

4. According to the Revision petitioner, the Court fee has to be paid on the market value of the
property on the date of filing of the suit, however, if a plea is raised that the signature was obtained in
a blank paper or fraud was played, then the Court fee need not be paid and for the said proposition,
the learned counsel relied upon a decision reported in 2002 (2) CTC 513 ([Link]
[Link]), wherein in paragraph 19 it has been held as follows:-

“19. To sum up, the legal position is:

.......

......

(j) 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.

(K) But however, if a plea is raised that the signature was obtained ina 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.”

5. The said decision squarely applies to the facts of the present case. If the said decision is applied,
then the petitioner herein /plaintiff is not required to pay any court fee under Section 40 of Act.
Therefore, the Trial Court is directed to take the suit on file if it is otherwise in order subject to
maintainability of the suit and thereafter, to proceed with the matter in accordance with law. After
appearance of the defendant and after filing the written statement, if the Court below thinks it proper
that the plea raised is otherwise, then it is open to the Trial Court to decide on the issue of court fee
and shall direct the petitioner / plaintiff to pay the Court Fee.

6. With the above directions, the Revision Petition is disposed of. No costs.

CDJLawJournal