IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:08.01.2008 CORAM THE HONOURABLE Mr. JUSTICE A.C.ARUMUGAPERUMAL ADITYAN Civil Revision Petition (NPD) No.1399 of 2006 and M.P.Nos.1 and 2 of 2006 1. C.Jothirlingam 2. J.Yuvarani 3. J.Vidhya 4. Minor J.Arul Usha Nandhini 5. Minor J.Gurusubramani All the petitionerns are represented by their General Power of Attorney J.Revathy ... Petitioners / Plaintiffs Vs. 1.S.R.Jayaraman 2. J.Nagarathinam ... Respondents/ Defendants 2 & 3 Civil Revision Petition is filed under Section 115 of CPC, to against the fair and decretal order dated 17.7.2006 made in I.A.No.1981 of 2005 in O.S.No.1138 of 2005 on the file the First Additional District Munsif,Salem. For Petitioners : : Mr.K.Doraisami, Senior Advocate For M/s Kandavadivel Doraisami For respondents : : Mr.D.Shivakumaran,Advocate O R D E R The order passed in I.A.No.1981 of 2005 in O.S.No.1138 of 2005 on the file of the First Additional District Munsif, Salem is under challenge before this Court in this revision petition. The said application was filed under Order 7 Rule 11(B) CPC to reject the plaint in limini as not maintainable since the suit is under valued. After contest, the learned trial Judge has held that the Court fee paid under Section 25(d) of the Tamil Nadu Court Fees and Suit Valuation Act 1955( hereinafter referred to https://hcservices.ecourts.gov.in/hcservices/ as "the said Act") is not correct and the Court Fee ought to have been paid under Section 40 of the said Act since the value of the subject matter of the suit is Rs.30,00,000/-. 2. Mr.K.Doraisami, the learned Senior Counsel appearing for the revision petitioners would contend that the plaintiffs have filed the suit on the ground that the impugned sale deed executed by their power of attorney agent one year after the cancellation of the power dated 24.7.2004 is not valid under law and that only for cancellation of the said sale deed , they had filed a suit , paying the Court fee under Section 25(d) of the said Act. Section 25(d) of the said Act reads as follows: "In a suit for a declaratory decree or order, whether with or without consequential relief not falling under Section 26- a. . . . . . . . . . . b. . . . . . . . . .. c. . . . . . . . . . . d. In other cases, whether the subject- matter of the suit is capable of valuation or not,fee shall be computed on the amount at which the relief sought is valued in the plaint or on (rupees one thousand) which ever is higher." On the other hand, Section 40 of the said Act says that " 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(2) If the decree or other document is such that the liability under it cannot be split up and the relief claimed relates only to a particular item of property belonging to the plaintiff or to the plaintiff's share in any such property, fee shall be computed on the value of such property or share or on the amount of the decree , whichever is less. Explanation: A suit to set aside an award shall be deemed to be a suit to set aside a decree within the meaning of this Section. Sub Section (2) and explanations are new". Admittedly, the plaintiffs have filed a suit for cancellation of sale deed relating to the plaint schedule property which was sold to a third party for a sum of Rs.30,00,000/-. https://hcservices.ecourts.gov.in/hcservices/ 3. Under such circumstances, I am of the view that the plaintiffs have to pay the Court fee under Section 40 of the said Act since the plaintiffs have sought for cancellation of a document viz., sale deed said to have been executed by their power of attorney agent , after the cancellation of the power for a sum of Rs.30,00,000/-. 4. Mr.D.Shivakumaran, the learned counsel appearing for the respondents relying on a decision reported in Chellakannu-vs- Kolanji(2005(5) CTC 190) would contend that in a case of similar facts ,this Court has held at paragraph 15 as follows: " The allegation on the plaint in substance amounts to cancellation of the document. Though the prayer is couched in the form 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 is right in ordering payment of Court fee under Section 40 of the Act." The above decision in all four corners will be applicable to the present facts of the case too. 5. The learned trial Judge, after an elaborate discussion on the question of payment of Court fee has come to a correct conclusion that the plaintiffs ought to have paid the Court fee under Section 40 of the said Act and directed the plaintiffs to pay the Court fee on the value of Rs.30,00,000/- for the plaint schedule property and to pay the Court fee under Section 40 of the said Act, giving two months time with a condition that the failure to comply with the conditional order, the plaint shall be rejected. The learned trial Judge, after coming to the conclusion that the Court Fee paid under Section 25(d) of the said Act is in correct , ought to have returned the plaint to the plaintiffs for proper representation before the appropriate forum after paying the Court fee under Section 40 of the said Act. 6. In fine, the civil revision petition is allowed with the following modification. https://hcservices.ecourts.gov.in/hcservices/ The plaint is ordered to be returned to the plaintiffs for re- presentation before the appropriate forum, after paying necessary Court Fee for the suit value of Rs.30,00,000/- under Section 40 of the said Act. Time for re-presentation before the appropriate forum two months from this date. The learned Court below has to return the plaint to the plaintiffs within one week from the date of receipt of a copy of this order. No costs. Consequently, connected M.P.Nos.1 and 2 of 2006 are closed. Sg Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar To 1. The first Additional District Munsif, Salem 2. The Section Officer, V.R.Section, High Court, Madras CRP(NPD)No.1399/2006 KSJ(CO) SR/8.1.2008 https://hcservices.ecourts.gov.in/hcservices/