C.R.P. No. 3476 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 01.11.2022
CORAM
THE HONOURABLE MRS. JUSTICE T.V.THAMILSELVI
C.R.P.No. 3476 of 2018
and
C.M.P. No. 19453 of 2018
1 D.Shanmugam
S/o. Late Duraisamy
2 S.Shanthi
S/o Late D.Shanmugam
3 S.Dharani
D/o. Late D.Shanmugam
4 S.Dhayanandan
S/o Late D.Shanmugam ... Petitioners
Vs
1 V.Ponnusamy
S/o. Late.Veerappagounder
2 S.Selvaraj
S/o. Siddhagounder
3 S.Shamugam
S/o. Siddhagounder ... Respondents
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C.R.P. No. 3476 of 2018
PRAYER : Civil Revision Petition filed under Art. 227 of Constitution of
India, praying to set aside the fair and final order in I.A.No. 797 of 2017 in
O.S.No.108 of 2013 dated 20.07.2018 on the file of Sub-Court, Bhavani.
For Petitioners : Mr.MA.P. Thangavel
For Respondents : Mr.S.Lakshmanasamy
for R1 to R3
ORDER
The Revision Petitioners herein are the plaintiffs in the suit in
O.S.No.108 of 2013, on the file of Sub-Court, Bhavani for the relief of
declaration to declare the sale deed dated 07.03.2013 as null and void on the
ground that it was fraudulently created by the 1st defendant colluded with
the 3rd defendant and other reliefs.
2. The said suit was contested by the defendants by filing their written
statement. Issues were framed and evidences were examined on the side of
plaintiffs and on the side of defendants, D.W.1 and 2 were examined. At
that time, the plaintiffs filed an application in I.A.No. 797 of 2017 under
Order 6 Rule 17 of C.P.C. praying to amend the pleadings, more
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particularly, with regard to payment of court fee. The said application was
strongly objected by the defendants stating that even at the time of filing
written statement, he disputed the prayer claimed by the plaintiffs, but after
completion of examination of witnesses, they filed this application to amend
the prayer, as such is not maintainable in law and also contended that no
reason assigned by the plaintiff for filing the said application belatedly. On
considering submissions of both sides, the trial court dismissed the
application holding that after completion of evidence, the said application
was filed and if the said application is allowed, there may be a change in the
character of suit. Challenging the said findings, the plaintiffs preferred this
Civil Revision Petition.
3. The learned counsel for Revision Petitioners submitted that the trial
court failed to take note of the fact that in a suit for declaration, the
plaintiffs have to prove their title over the property by adducing their
evidence, because these plaintiffs are not parties to the document and the
present application was filed only to amend the court fee because at the time
of filing of the suit, he paid a court fee under Sec.27(c) of Tamil Nadu Court
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Fees and Suit Valuation (Amended) Act, 2003 (hereinafter called as 'Act')
due to lack of due diligence. Considering the prayer in the plaint, the
plaintiffs have to pay court fee under Sec.40 of the said Act, however, if he
is not permitted to pay the said court fee, his valuable right with regard to
the property will be defeated. Furthermore, amending the plaint with regard
to court fee would not change the character of the suit. But, without
appreciating those legal aspects, the trial court erroneously dismissed the
application. Hence, he prayed to set aside the same.
4. The learned counsel appearing for respondents/defendants
submitted that even at the time of filing written statement itself, they
categorically stated the payment of court fee paid by the plaintiffs is
incorrect, but the plaintiffs not taken any steps to amend the court fee and
only after completion of evidence on both sides, they come forward with the
said application, as such, is highly belated one, besides no reason assigned
for filing the said application. Hence, the trial court rightly appreciated the
said fact, which needs no interference. Therefore, he prayed to dismiss this
Civil Revision Petition.
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5. Heard and considered rival submissions made by learned counsel
for revision petitioners as well as respondents and perused the records.
6. On considering submissions of both sides and on perusal of
records, it reveals that the plaintiffs filed the suit for the relief of declaration
to declare the sale deed as null and void and paid court fee under Sec.27(c)
of the Act. Admittedly, as per the contention of plaintiffs, the sale deed said
to be executed by the 1st defendant with 2nd defendant is not a valid sale
deed. Relying the ratio laid down in the case of J.Vasanthi and others vs.
N.Ramani Kanthammal (dead) rep. by legal representatives and others
reported in 2017 (11) SC 852 : 2017 (5) SCC (Civ.296 : 2017 SCC Online
SC 901, wherein the Hon'ble Apex Court held as follows :-
"A. Court fees – T.N. Court Fees and Suit Valuation Act,
1955 (14 of 1955) – S.40 or S.25 (d) – Suit for declaration
that sale deeds were fabricated and hence void – Held, in suit
for declaration for treating documents null and void, which
basically amounts to seeking relief of cancellation of
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documents, and where original plaintiff was party to such
transaction, as if instant case, the court fee is to be computed
on value of subject matter of suit i.e. under Sec.40 –
Impugned judgment affirming order of trial court rejecting
defendant-applicant's application praying for directing
plaintiffs to pay court fee under S.40, unsustainable – Trial
Court directed to grant three months' time to plaintiff to pay
requisite court fees – Specific Relief Act, 1963. S.31.”
the plaintiffs contend that they are not parties to the document, which is
sought to be declared as null and void, they have to necessarily pay court
fee under Sec.40 of the Act. Therefore, the application filed by the
plaintiffs, as such is maintainable. At the same time, as argued by the
learned counsel for revision petitioners that they must be given due
diligence to aware this fact at the time of filing the plaint itself. But, no
reason assigned in the affidavit. On seeing the facts of the case, the
plaintiffs approached the court to declare the sale deed as null and void.
Admittedly, they are not parties to that document and the main relief
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claimed in the suit is to declare the sale deed as null and void. So, the
plaintiffs have to pay necessary court fee under Sec.40 of the Act. Now, the
evidence was completed. But with regard to payment of court fee, it is a
mixed question of law and facts. The plaintiffs may be directed to pay
deficit court fee at any point of time, if the Court finds necessary. Now, on
seeing the prayer of the plaint, necessarily the plaintiffs have to pay the
court fee under Sec.40 of the Act. Furthermore, the authority relied on by
the learned counsel for plaintiffs is squarely applicable to the facts of the
present case. Admittedly, there is some lacuna in the procedures to be
followed, due to which, the right of parties should not be affected. Hence,
the findings of the learned trial judge is liable to be set aside.
7. In the result, this Civil Revision Petition is allowed and the order
passed by the learned trial judge in I.A.No. 797 of 2017 is set aside. The
plaintiffs are directed to amend the plaint accordingly and they have to pay
necessary court fee. Liberty is granted to the respondents/defendants to file
their additional written statement if any. However, as there is no reason
assigned for the payment of court fee, the plaintiffs are directed to pay a
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cost of Rs.10,000/- payable to the learned counsel for respondents within a
period of two weeks from the date of receipt of copy of this order.
Thereafter, after making necessary amendment, the trial court is directed to
proceed with the trial and dispose the case within a period of three months.
No costs. Consequently, the connected Civil Miscellaneous Petition is also
closed.
01.11.2022 Index : Yes/No Internet: Yes/No Speaking/Non Speaking order rpp
To
Sub-Judge, Bhavani.
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T.V.THAMILSELVI, J.
rpp
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