Animadverting upon the order dated 18.10.2007 passed by the learned Family Court Judge, Pondicherry, in I.A.No.418 of 2004 in O.S.No.157 of 2004, this civil revision petition is focussed.
2. Heard both sides.
3. A summation and summarisation of the relevant facts which are absolutely necessary and germane for the disposal of this revision petition would run thus:
The husband, namely P.Bakthavachalam filed the suit O.S.No.157 of 2003 as against his wife/first defendant B.Mohanasundari and three others. In addition to praying for various other reliefs, the plaintiff also has prayed for the relief of declaring that the Settlement Deed dated 24.07.2003 is null and void. The first defendant after entering appearance filed an I.A.No.418 of 2004 under Section 11(2) of the Pondicherry Court Fee and Suit Valuation Act, 1972 praying the Court to decide on the valuation and the adequacy of Court fee paid, whereupon the Court rendered its verdict on 18.10.2007 to the effect that the Court fee should have been paid on the market value of the property referred to in the impugned settlement deed and not notionally in a sum of Rs.15,000/- by invoking Section 25(d) of the said Act. Animadverting upon such order, the plaintiff filed this revision petition on various grounds.
4. The learned counsel for the revision petitioner placing reliance on the grounds of revision would develop his argument to the effect that the Court is expected to look into the averments in the plaint as well as the prayer and whereupon it has to see as to whether the reliefs are properly valued or not; but in this case, violating the well settled proposition of law, the lower Court assumed and presumed as though the prayer for declaration virtually amounts to seeking cancellation of the settlement deed and accordingly, the lower Court invoked Section 40(1) of the said Act, which is against law.
5. Despite printing the name, neither the counsel nor the second respondent has appeared.
6. In this factual matrix, my mind is reminiscent and redolent of the common or garden principle of law that it is not actually the wordings in the plaint or the prayer in the plaint that would be the criteria to assess the valuation and Court fee. The Court has to see as to what actually are intended in the plaint and what would be the direct consequence of the relief claimed in the plaint. Here it is obvious and axiomatic that the husband clearly and categorically has come forward with the specific case that the wife managed to get the settlement deed executed from him. In other words, he pleads fraud and coercion etc. In such a case, it is clear that the plaintiff is a party to the impugned document and he cannot be simply heard to contend that he would be satisfied if a declaration is made to the effect that such settlement deed is null and void. By getting declared the deed as null and void, virtually the plaintiff would be getting the relief of settlement deed cancelled or nullified.
7. At this juncture, Section 40(1) of the said Act is reproduced hereunder for ready reference:
"40. Suits for cancellation of decrees, etc.- (1) 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 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 such value shall be deemed to be.
if the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed;
if a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property."
8. A bare perusal of it would clearly indicate that in matters of this nature, the Court fee should be paid based on the market value of the property covered by the impugned settlement deed as on the date of filing of the suit and not on some notional value.
9. The learned counsel for the revision petitioner cited the following two decisions and certain excerpts from them would run thus:
(i) 2001(4)CTC 764 [Kamaleshwar Kishore Singh vs. Paras Nath Singh and others]. Paragraph 8 of the said decision would run thus:
"8. It is well settled that the court fee has to be paid on the plaint as framed and not on the plaint as it ought to have been framed unless by astuteness employed in drafting the plaint the plaintiff has attempted at evading payment of court fee or unless there be a provision of law requiring the plaintiff to value the suit and pay the court fee in a manner other than the one adopted by the plaintiff. The court shall being with an assumption, for the purpose of determining the court fees payable on plaint, that the averments made therein by the plaintiffs are correct. Yet, an arbitrary of the suit property having no basis at all for such valuation and made so as to evade payment of court fees and fixed for the purpose of conferring jurisdiction on some court which it does not have, or depriving the court of jurisdiction which it would otherwise have, can also be interfered with by the court. It is the substance of the relief sought for and not the form which will be determinative of the valuation and payment of court fee. The defence taken in the written statement may not be relevant for the purpose of deciding the payment of court fee by the plaintiff. If the plaintiff is ultimately found to have omitted to seek an essential relief which he ought to have prayed for, and without which the relief sought for in the plaint was framed and filed cannot be allowed to him, the plaintiff shall have to suffer the dismissal of the suit. These principles of law were over-look by the trial Court in passing the impugned order which was put in issue before the High court. We are further of the opinion that though the revision preferred by the plaintiff was directed against the order dated 1.3.97, the real question arising before the High Court was to find out whether the suit was properly valued and proper court fee was paid thereon in accordance with law. While doing so if the High Court was required to examine the correctness or otherwise of the order dated 17.12.96 it should not have felt inhibited from doing so. In the facts of the present case we are clearly of the opinion that the High Court was not justified in dismissing the revision on the ground that the order dated 1.3.97 was an order correcting a clerical or typing error only."
(ii) 2007(1)CTC 300 [K.Palaniswamy and another vs. S.B.Subramani and another]. Paragraphs 7, 9 and 10 of the said judgment read as follows:
"7. From the plaint, it could be seen that it is the case of the petitioners that the second respondent was the power of attorney of the first respondent/plaintiff. Even after revocation of the power of attorney, he appears to have executed the sale deed in favour of the second and third defendants/petitioners herein. That precisely made the first respondent/plaintiff to file the Suit seeking for the prayer of declaration as stated above. In such circumstances, when the first respondent was not a party to the document, the relief sought for in the Suit would not come under Section 40 of the Tamil Nadu Court Fees and Suit Valuation Act and the contention of the petitioners herein cannot be accepted.
9. None of the circumstances, which have been provided as reasons for rejecting the plaint in Order 7, Rule 11 has been established in the present case. This is not as if the Suit is filed without any cause of action. Cause of action has been stated to have arisen on 17.1.2000, when the plaintiff has cancelled the power of attorney executed in favour of the first defendant and on 3.3.2000 and 13.3.2000, when the first defendant has executed the above three sale deeds in favour of second and third defendants and on 11.4.2001, when the plaintiff had knowledge about the sale of the suit schedule property and 12.4.2001, when the plaintiff has received the Encumbrance Certificate from the Sub-Registrar of Udhagai, which according to the first respondent/plaintiff is an outcome of fraud. Therefore, the plaint cannot be rejected on the ground that the plaintiff has no cause of action. The relief sought for in the Suit is as follows:
(a) for declaration declaring the sale deeds document Nos.238, 239 and 276 of 2000 executed by the first defendant/second respondent herein in favour of the second and third defendants/petitioners herein as null and void and unenforceable and would not bind on the plaintiff;
(b) for consequential declaration declaring that the third defendant is a lessee under the plaintiff.
For the limited purpose of determining the question as to whether the Suit has to be wiped off under Order 7, Rule 11 of the Code of Civil Procedure or not, the averments in the plaint are only to be looked into. So long as the plaint discloses cause of action and raises question fit to be decided by the Court, mere fact that the plaint is framed in a different manner and such framing of the plaint would make the case weak and not likely to succeed could never be a ground for striking a plaint.
10. Court fee has to be paid on the plaint as framed and not as it ought to have been framed unless by astuteness employed in drafting the plaint the plaintiff has attempted for evading payment of Court-fee or there be a provision of law requiring the plaintiff to value the suit and pay the Court-fee in a manner other than the one adopted by the plaintiff."
10. A bare perusal of those excerpts including the entire judgments would no doubt clearly indicate that the normal rule is that plaintiff being the dominus litis is entitled to draft his plaint in his own way and pray for the appropriate relief and it is not for the Court to thrust upon the plaintiff certain reliefs and thereupon assess the court fees. In the meanwhile one should not lose sight of the fact that law also is well settled to the effect that when the nature of the pleadings and the prayer are such that they virtually usher in particular kind of relief which is not the one apparently asked in the plaint, certainly the Court should look into the true purport of the plaint and the prayer for valuation and payment of court fee. Here in this case, the averments coupled with the prayer in the plaint would apparently and unambiguously highlight and home in on the point that the plaintiff wants the settlement deed executed by him to be G.RAJASURIA,J., gms nullified/cancelled. Hence in such a case, there is no other go but to apply Section 40(1) of the Act, which he trial Court correctly and appropriately applied. Hence, no interference with the order in the revision is warranted.
11. From a bare perusal of the lower Court's order it appears that a month's time was granted by the lower Court for compliance. In view of this revision and the dismissal of the same by this Court, I would like to extend the time by one month from the date of receipt of a copy of this order for complying with the order of the lower Court.
Accordingly, this civil revision petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.
19.01.2009 Index :Yes Internet:Yes gms To Family Court Judge, Pondicherry.
C.R.P.(PD)No.914 of 2008 and M.P.No.1 of 2008