Sri G.S. Mahendra vs Smt. Komala
2023 Latest Caselaw 3632 Kant

                                1

                                                      R
       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 23RD DAY OF JUNE, 2023

                          BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

           CIVIL REVISION PETITION NO.339 OF 2023

BETWEEN:

1.     SRI G.S. MAHENDRA,
       S/O LATE M.SIDDIAH,
       AGED ABOUT 61 YEARS,
       RESIDING AT NO.672/A,
       11TH CROSS, 7TH BLOCK (WEST),
       JAYANAGAR, BANGALORE-560082

2.     SRI. G.S. RAVINDRA
       S/O LATE M. SIDDIAH,
       AGED ABOUT 55 YEARS,
       NO.314, GROUND FLOOR,
       14TH CROSS, 1ST FLOOR,
       2ND BLOCK, JAYANAGAR,
       BANGALORE-5600114.

3.     SMT. INDIRA GANANENDRA,
       W/O LATE G.S GNANENDRA
       AGED ABOUT 54 YEARS,
       NO.NO.3 15, 14TH CROSS,
       1ST FLOOR, 2ND BLOCK,
       JAYANAGAR, BANGALORE-560011.         ... PETITIONERS

           (BY SRI B.S.RAGHU PRASAD, ADVOCATE)

AND:

SMT. KOMALA,
W/O SRINIVASA,
D/O LATE M.SIDDIAH,
                                 2



AGED ABOUT 65 YEARS,
R/O AT NO.4, ASHRAYA APARTMENTS,
3RD MAIN, SAMRAT LAYOUT,
BANNERGHATTA ROAD, ARAKERE,
BANGALORE-560076.
NOW IN UNIT 500,
253 FRANKLIN STREET,
MELBOURN, VICTORIA-30D
REPRESENTED BY HER GPA HOLER
AND SON MR.VIKRAM SRINIVAS.
                                                  ... RESPONDENT

          (BY SMT. LATHA SHETTY, ADVOCATE FOR C/R)

     THIS CRP IS FILED SECTION 115 OF CPC AGAINST THE
ORDER DATED 21.04.2023 IA.NO.III IN O.S.NO.439/2022 ON
THE FILE OF THE XIV ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE BANGALORE AND ETC.

     THIS CRP HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 09.06.2023, THIS DAY, THE COURT PRONOUNCED
THE FOLLOWING:

                           ORDER

This revision petition is filed challenging the order dated

21.04.2023 passed on I.A.No.3 filed under Order VII Rule 11

read with section 151 of CPC in O.S.No.439/2022.

2. The factual matrix of the case of the plaintiff before

the Trial Court is that the defendants have obtained the

document of release deed by misrepresentation and fraud.

Hence, sought for the relief of cancellation of registered release

deed dated 01.07.2019 as well as other reliefs.

3. The defendants appeared and filed an application

under Order VII Rule 11 read with Section 151 of CPC praying

the Court to reject the plaint as there is no cause of action,

Court fee paid is insufficient and plaint being not verified and not

filed in accordance with law. In support of this application, an

affidavit is sworn to by defendant No.1 contending that the

plaintiff is his younger sister who is currently in Bengaluru and

no proper verification of the plaint since it reflects that she has

signed the plaint in Australia but it is filed at Bengaluru and

verifying affidavit is also deposed at Australia and not at

Bengaluru which is irregular, illegal and not in accordance with

law. It is also further sworn to that since she had already

received adequate financial assistance while constructing

residence at Shivamogga by her brothers and her brothers had

supported her financially while her husband was medically

suffering Parkinsons and Alzeimers. It is also sworn to that the

averments of the plaint are false and no power is given to the

GPA holder to institute the suit. It is also sworn to that the

Court fee paid in a sum of Rs.25/- is improper for cancellation of

document is sought and ought to have been paid on the market

value of each property since there is no valuation of each

property hence, the plaint is liable to be rejected and described

the item Nos.1 to 6 in paragraph 9 and contended that suit

ought to have been valued for the purpose of Court fee under

Section 38 of Karnataka Court Fees and Suit Valuation Act

hence, the plaint is liable to be rejected.

4. The respondent/plaintiff resisted this application by

filing the objection statement contending that the document was

signed in Australia as the plaintiff and her son who is a GPA

holder were in Australia when the cause of action arose and were

not in a position to travel back to India due to several travel

restrictions in Australia. The precaution was taken to ensure

that the verification was done and the documents were properly

executed. Hence, the very contention that no authorization to

file the suit cannot be accepted when there is a proper

verification. It is also contended that in the plaint there is clear

cause of action is mentioned as it was arose on 29.09.2021 and

in the plaint it is specifically pleaded with regard to the cause of

action and narrated with regard to the misrepresentation and

fraudulently obtained the document dated 01.07.2019 hence,

sought for an appropriate order. It is also contended that no

consideration was shown in the document and the plaintiff has

sought for cancellation as the document as the same is void and

not binding on her and hence, consideration is not shown in the

document. When the document is a fraudulent one and void

document, the question of paying the Court fee does not arise.

Hence, the contention of the counsel for the defendants that not

paid the proper Court fee cannot be accepted and Section 38 of

the Act will not attract.

5. The Trial Court having considered the grounds urged

in the application as well as in the statement of objections

rejected the application in coming to the conclusion that while

considering Order VII Rule 11 of CPC, the Court has to look into

the averments of the plaint. The plaintiff has sought for the

relief of cancellation of the document on the ground that the

same was obtained by misrepresentation and by committing

fraud and the same requires to be tried and the same cannot be

dismissed at the threshold and also mentioned the cause of

action to file the suit. The Trial Court also with regard to the

Power of Attorney is concerned, taken note of Clause 16 of the

Power of Attorney which shows that it authorizes the Power of

Attorney holder to file the suit to cancel the document obtained

by the defendants under misrepresentation. The Court also

taken note of the ground urged with regard to the suit is not

properly valued and comes to the conclusion that the

opportunity has to be given to pay the Court fee if the Court fee

paid is insufficient and the same cannot be dismissed at the

threshold.

6. Being aggrieved by this order, the present revision

petition is filed before this Court. The counsel for the petitioners

would vehemently contend that Order VII Rule 11 of CPC is

provided that the Court can itself look the prayer sought and the

documents provided to ascertain the maintainability of the suit.

On prima facie reading of the plaint itself manifests that suit was

not maintainable. The counsel also would vehemently contend

that since there were no signature found on each page of the

pleading and signature was found only on the last page, it was

as if there was no plaint filed and plaint ought to have rejected.

The counsel would vehemently contend that verifying affidavit

was sworn to before the notary opposed to Notaries Act and the

same could not be considered as being sworn to in India

contrary to Notaries Act and same is a defective verifying

affidavit. Hence, on that ground also, the plaint ought to have

been rejected. The counsel also would vehemently contend that

only nominal Court fee was paid without valuing the property

and when there is deliberate undervaluation of the plaint, the

same is liable to be rejected.

7. The counsel in support of his argument relied upon

the judgment of this Court reported in ILR 2005 KAR 884 in

the case of T L NAGENDRA BABU vs MANOHAR RAO PAWAR

wherein this Court discussed with regard to when the document

of Power of Attorney is invoked and filed the suit, the documents

would have been duly executed and authenticated and brought

to notice of this Court to paragraph 10 wherein this Court made

an observation that if Power of Attorney was seriously contested

with regard to the very execution is concerned and the same is

not the proper document.

8. The counsel also relied upon the judgment of the

Apex Court reported in AIR 1979 SC 134 in the case of H D

VASHISHTA vs M/S GLAXO LABORATORIES (I) (P) LTD.,

wherein also the Apex Court held that the material facts

constituting cause of action not averred in plaint hence, suit

must fail. The counsel referring this judgment would contend

that in the case on hand also no material facts constituting cause

of action in the suit hence, the same has to be rejected.

9. The counsel also relied upon the judgment of the

Apex Court reported in AIR 2005 SC 2392 in the case of

SWAMY ATMANANDA AND OTHERS vs RAMAKRISHNA

TAPOVANAM AND OTHERS wherein also the Apex Court held

that the cause of action is a bundle of facts which taken with law

applicable to them and in the absence of material facts of cause

of action, the suit must fail.

10. The counsel also relied upon the judgment of this

Court reported in 2017 (3) KAR L J 356 in the case of

CANARA BANK, ANCARD DIVISION, BANGALORE vs

GIRIJA PRASAD GUPTA wherein this Court also discussed with

regard to the cause of action consists of bundle of facts, it must

inter alia, include some act done by the defendant.

11. The counsel also relied upon the judgment of the

Apex Court reported in (1980) 1 SCC 616 in the case of

MEENAKSHISUNDARAM CHETTIAR vs VENKATACHALAM

CHETTIAR wherein the Apex Court discussed with regard to that

plaintiff is entitled to give a tentative valuation if inspite of his

genuine efforts he is unable to make out an exact valuation and

if it is not done, the plaint is liable to be rejected in a case of

deliberate undervaluation.

12. The counsel also relied upon the judgment of the

Apex Court reported in (2009) 9 SCC 173 in the case of P K

PALANISAMY vs N ARUMUGHAM AND ANOTHER wherein

the Apex Court also considering Order VII Rule 11 held that an

application was filed in the year 2008, though written statement

was filed in the year 2003 and evidently, 04.01.2008 was not

the stage for entertaining the application under Order VII Rule

11(c). Payment of Court fee is a matter between the State and

suitor. In the event a plaint is rejected, the defendant would be

benefited thereby. But if an objection is to be raised in that

behalf or an application is to be entertained by the Court at the

behest of a defendant for rejection of the plaint in terms of Order

VII Rule 11(c) CPC, several aspects of the matter are required to

be considered.

13. The counsel also relied upon the judgment of the

Apex Court reported in AIR 2022 SC 4724 in the case of C S

RAMASWAMY vs V K SENTHIL AND OTHERS wherein also the

Apex Court discussed with regard to Order VII Rule 11(d) of CPC

- rejection of plaint. Merely by using the word 'fraud', plaintiffs

cannot bring suits within limitation, which otherwise maybe

barred by limitation, the plaint is liable to be rejected.

14. The counsel also relied upon other two judgments of

the Apex Court and the same are not in respect of the issues

involved between the parties invoking Order VII Rule 11 of CPC

hence, they are not relied upon since those judgments are with

regard to Section 6 and Section of 8 of Devolution of

coparcenary property and also with regard to Order 22 Rule 5 of

determination of question as to legal representative.

15. Per contra, the learned counsel appearing for the

respondent would vehemently contend that in the plaint, it is

specifically pleaded with regard to the cause of action and also

the plaint is signed by the Power of Attorney holder and separate

valuation slip is also filed along with the suit. The very

contention of the counsel for the petitioners that Section 38 of

Karnataka Court Fees and Suit Valuation Act is attracts cannot

be accepted. The counsel also would vehemently contend that

only with an intention to scuttle the proceedings, an application

is filed and no merit in the application and the Trial Court dealt

with all the aspects of cause of action and also whether the suit

is barred by limitation and the same is verified and the Court fee

also is a matter of trial with regard to whether Court fee paid is

sufficient or not and hence, the Trial Court has not committed

any error.

16. The counsel for the respondent in support of her

arguments relied upon the judgment reported in AIR 2016 KAR

58 in the case of JAWARE GOWDA AND ANOTHER vs

BASAVARAJU N J AND OTHERS. The counsel referring this

judgment would vehemently contend that suit is filed for the

cancellation of instrument that is release deed and specific

averment is also made in the plaint that by misrepresentation

the signature is obtained. In this judgment it is held that value

of subject matter of suit also to be considered. If the

consideration is mentioned in the instrument which is to be

considered but the document on record no such consideration is

mentioned and the Court held that words 'market value'

conspicuously missing cannot be added or read in Section and

the same is not found in Section 38. Hence, this judgment is

aptly applicable to the case on hand.

17. The counsel also relied upon the judgment of the

Apex Court reported in AIR 2014 SC 1286 in the case of

POLAMRASETTI MANIKYAM AND ANOTHER vs TEEGALA

VENKATA RAMAYYA AND ANOTHER wherein also the Apex

Court while considering the Court Fees and Suit Valuation Act,

discussed with regard to the expression value of property cannot

be substituted with expression market value of property, suit for

cancellation of sale deed is basis for Court fee is sale

consideration mentioned in sale deed, not on basis of market

value of the property. The counsel would vehemently contend

that no consideration is mentioned in the instrument hence, the

question of payment of Court fee does not arise.

18. The counsel also relied upon the judgment reported

in AIR 2010 SC 2777 in the case of SATHEEDEVI vs

PRASANNA AND ANOTHER wherein also discussed with regard

to the Court Fees and Suit Valuation Act. The determination of

market value of property and when the suit for cancellation of

document which creates any right, title or interest in immovable

property, value of property for which the document was

executed, and not, its market value, is relevant for purpose of

Court fee.

19. The counsel also relied upon the judgment reported

in 2015(3) KCCR 2149 in the case of SRI JAWARE GOWDA

AND ANOTHER vs SRI BASAVARAJU N J AND OTHERS. The

counsel referring this judgment would vehemently contend that

in the case on hand also, the allegation is Palupatti is forged,

concocted and invalid and plaintiff was valued the suit for relied

of declaration under Section 24(d) and not for mandatory

injunction under Section 26(c) and paid Court fee. The Court

held that if the suit is for the relief of cancellation, Section 38

attracts but since no value is mentioned in the instrument, it

cannot be valued under Section 38 of the Act. Therefore,

Section 24(d) of the Act is attracted. Therefore, the plaintiff in

the absence of the value of the subject matter being mentioned

in the instrument and as the case does not fall under Section

24(a) and (d), they have no obligation to value the suit on the

basis of the market value. The plaintiffs have rightly valued the

suit under Section 24(d) of the Act and have given their

valuation as rupees one thousand. The counsel referring this

judgment would vehemently contend that when the document

does not discloses any consideration, the question of payment of

Court fee either on the market value or on the property value

does not arise.

20. Having heard the learned counsel appearing for the

respective parties, considering the material facts and the

principles laid down in the judgments referred supra, the point

that would arise for the consideration of this Court that:

(1) Whether the Trial Court has committed an

error in dismissing the application filed under

Order VII Rule 11 of CPC and whether the said

order suffers from its legality and correctness?

(2) What order?

Point No.1:

21. Having heard the learned counsel appearing for the

respective parties and also on perusal of the material on record

particularly the plaint averments, wherein the specific averment

is made that she has got 1/6th share in the suit schedule

properties and the document of release deed was obtained by

misrepresentation and fraudulently when her husband was not

keeping well, she was taken to the Sub-Registrar office stating

that she has to sign the document as a witness and obtained the

document. The issue between the parties is with regard to the

misrepresentation and fraudulent act is concerned, hence, the

matter requires to be tried before the Trial Court to prove that

whether there is misrepresentation and fraudulent act in taking

the signature. No doubt, the relief is sought for the cancellation

of the release deed. As rightly pointed out by the counsel for the

respondent that on perusal of the document which is produced

before this Court by the revision petitioners, that is, release

deed, nowhere the document discloses any consideration and on

perusal of this document it shows that no consideration is

mentioned in the document and hence, the judgment relied upon

by the respondent counsel is with regard to the valuation and

payment of Court fee is concerned is aptly applicable to the case

on hand.

22. This Court as well as the Apex Court held with regard

to that invoking of Court Fees and Suit Valuation Act with regard

to the expression, value of the property and also the subject

matter in issue and whether the Court fee is payable under

Section 38 or not. It is very clear that Section 38 will not attract

when the consideration is not shown in the document which is in

question and no doubt, the counsel appearing for the petitioners

relied upon the judgment with regard to plaint is liable to be

rejected in case of deliberate undervaluation and no such

circumstances warranted in the case on hand since no

consideration is mentioned in the document. Hence, the

judgment of the Apex Court in the case of

MEENAKSHISUNDARAM CHETTIAR (referred supra) is not

applicable to the facts on hand since there is no deliberate

undervaluation as contended by the counsel for the petitioners.

The counsel also relied upon the judgment of the Apex Court in

the case of P K PALANISAMY (referred supra) wherein the

Apex Court discussed with regard to Order VII Rule 11 (c) of CPC

noticing when belatedly an application is filed under Order VII

Rule 11 and comes to the conclusion that that several aspects of

the matter are required to be considered when an application is

filed under Order VII Rule 11 (c) of CPC and the said judgment

goes against the petitioners and hence, the said judgments are

not applicable. The counsel also relied upon the joint family in

the case of C S RAMASWAMY referred supra with regard to the

rejection of plaint on the ground of limitation but in the case on

hand, the question of limitation does not arise hence, the said

judgment also not applicable to the case on hand.

23. The other contention that there is no cause of action.

To substantiate the same, the counsel relied upon the judgment

of Apex Court in the case of H D VASHISHTA referred supra

and the same is in respect of Order VI Rule 2 - material facts

constituting cause of action not averred in plaint. The counsel

also relied upon the judgment in the case of SWAMY

ATMANANDA referred supra with regard to Order II Rule 2

cause of action is bundle of facts which taken with law applicable

to them and also relied upon the judgment of this Court in

CANARA BANK'S case wherein also discussed with regard to

the cause of action is a bundle of facts.

24. In keeping the principles laid down in the judgments

and also looking into the averments of the plaint, the plaintiff

specifically pleaded with regard to under what circumstances,

the document was taken. In paragraph 6 as well as in 9

narrated the facts and also stated cause of action when it was

arose i.e., on 01.09.2021 when the plaintiff was informed by the

relatives about the said document and when she obtained the

document of certified copy of the release deed on 01.07.2011

and the Trial Court also rightly comes to the conclusion that

Court has to look into the averments of the plaint while taking

note of the cause of action and rightly comes to the conclusion

that cause of action also stated in the plaint and the Court has to

see only the plaint averments and the same is also a settled

position of law and the Court has to look into only the averments

of the plaint whether it constitutes cause of action or not and not

the defence. The judgments relied upon by the counsel for the

petitioners not applicable to the case on hand when the cause of

action has been narrated in the plaint itself. The other

contention of the counsel for the petitioners is that by producing

the document of Power of Attorney, no power is given to file a

suit under GPA and the same also cannot be accepted when the

Trial Court also taken note of Clause 16 of the GPA where it is

mentioned to cancel any deed pertaining to the mentioned

properties executed by her at the misguidance of her brothers.

The case of the plaintiff that by misrepresentation only her

brothers have obtained the said document and hence, the said

contention is a matter of trial. The other contention is that the

plaint is not signed by each page. No doubt, on perusal of the

plaint, each page has not been signed. But the plaint has been

signed including verification hence, the contention that not

signed each page cannot be a ground to dismiss the plaint at the

threshold. Hence, I do not find any merit in the revision petition

and the order passed by the Trial Court will not suffers from any

legality and correctness and the matter has to be adjudicated

and it requires a trial. Hence, I answer point No.1 as negative.

Point No.2:

25. In view of the discussions made above, I pass the

following:

ORDER

The revision petition is dismissed.

Sd/-

JUDGE

SN