K. Palaniswamy and Christoper Holden Vs S.B. Subramani and J.K. Jawarappa

@JUDGMENTTAG-ORDER

K. Raviraja Pandian, J.@mdashThe plaintiff/first respondent herein filed a suit for 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 and for consequential permanent injunction against the first and second defendants from interfering and disturbing the peaceful possession of the first respondent in the suit schedule property.

2. The defendants 2 and 3/petitioner herein raised a contention that the suit has not been properly valued and proper court fee has not been paid and suit has to be rejected under Order 7 Rule 11 of Civil Procedure Code.

3. According to the petitioners/defendants 2 and 3, the sale deeds have been executed by the second respondent/first defendant. That factum has been explicitly stated in the written statement. But in spite of that, without seeking for cancellation of the sale deeds, a camouflaged prayer has been sought for by the first respondent. The suit filed by the first respondent is not properly valued and it is under valued. If it is properly valued, the trial Court has no jurisdiction and on that ground, they wanted to non-suit the first respondent to lay the plaint in the trial Court.

4. The trial Court after hearing the learned Counsel on either side passed an order in the suit on 12.4.2005 rejecting the objections raised by the petitioners by posting the suit for cross examination of P.W. 1. The correctness of the said order is now put in issue before this Court.

5. Learned Counsel appearing for the petitioners reiterated the contentions stated above and also relied on the judgment of the Supreme Court in the case of Shamsher Singh Vs. Rajinder Prashad and Others, .

6. I heard the argument of the learned Counsel for the petitioners and respondents also.

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 u/s 40 of the Tamil Nadu Court Fees and Suits Valuation Act and the contention of the petitioners herein cannot be accepted.

8. Rule 11 of the Order VII of the CPC provided that a plaint could be rejected (1) if the plaint did not disclose a cause of action;

(2) where the relief claimed was undervalued and the plaintiff, on being required by the Court to correct the valuation within the time to be fixed by the Court, failed to do so;

(3) where the relief claimed was properly valued, but the plaint was written upon a paper insufficiently stamped and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court failed to do so;

(4) where the suit appeared from the statement in the plaint to be barred by any law;

(5) where the plaint was not filed in duplicate; and where the plaintiff failed to comply with the provisions of Rule 9.

The proviso appended to the above provision provided for extension of time for complying with the corrections pointed out by the Court, on reason being recorded.

9. None of the circumstances, which have been provided as reasons for rejecting the plaint in Order VII 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 VII Rule 11 of the CPC 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. See Kamaleshwar Kishre Singh v. Parasnath Singh 2001 (4) CTC 764.

11. The case relied on by the petitioner in Shamsher Singh Vs. Rajinder Prashad and Others, was a case in which the third respondent executed a mortgage deed in favour of the appellant of the property of which he claimed to be the sole owner. The appellant filed a suit on the basis of this mortgage and obtained a decree. When he tried to take out an execution proceedings for the sale of the mortgaged property, the two sons of the third respondent (respondents 1 and 2) filed a suit for declaration that the mortgage executed by their father in favour of the appellant was null and void and ineffectual as against them as the property was a Joint Hindu Family property and the mortgage had been effected without consideration and family necessity. On this plaint, the plaintiffs paid a fixed court fee of Rs. 19.50 and the value of the suit for the purposes of jurisdiction was given as Rs. 16,000/-. A preliminary objection having been raised by the appellant that the suit was not properly valued for purposes of court fee and jurisdiction, the Subordinate Judge held that although the case was covered by Section 7(iv)(c) of the Court Fees Act, the proviso to that section applied and directed the plaintiffs to pay court fee on the value of Rs. 16,000/-. The Court fee not having been paid the plaint was rejected. The appeal filed by the plaintiffs before this Court was allowed. The matter was taken to the Supreme Court. The Supreme Court held that the plaint was rejected under Order 7, Rule 11 of the CPC. Such an order amounts to a decree u/s 2(2) and there was a right of appeal open to the plaintiff. Even otherwise, a second appeal would lie u/s 100 of the CPC on the ground that the decision of the first appellate Court on the interpretation of Section 7(iv)(c) is a question of law. While holding so, the Supreme Court further held that the Court fee payable on the plaint is certainly to be decided on the basis of the allegations and the prayer in the plaint and the question whether the plaintiff''s suit will have to fail for failure to ask for consequential relief is of no concern to the Court at that stage in deciding the question of substantive relief that is asked for. Mere astuteness in drafting the plaint will not be allowed to stand in the way of the Court looking at the substance of the relief asked for. This judgment is totally inapplicable to the facts of the presence case.

12. Thus, in my considered view, none of the ingredients of Order VII Rule 11 of the CPC is made out in this case on facts. Hence, I am of the view that the petitioners have not made out any case for interference under Article 227 of the Constitution of India.

13. For the reasons stated in the foregoing paragraphs, the civil revision petition is dismissed. No costs. The connected miscellaneous petition is consequently dismissed.