IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 21.09.2010 CORAM THE HON'BLE MR.JUSTICE M.JEYAPAUL S.A.No.484 of 2006 1.R.N.Shanmugavadivel 2.S.V.Shanmugam ...Appellants vs. 1.R.N.Myilsami 2.R.N.Krishnakumar 3.R.N.Nachammal ...Respondents Appeal filed under Section 100 of Civil Procedure Code against the Judgment and Decree of the Learned Subordinate Judge, Udumalpet dated 13.08.2004 in A.S.No.8/2004 confirming the Judgment and Decree of the Learned District Munsif, Udumalpet dated 10.03.2004 in C.F.R.No.8218/1993. For appellants : Mr.K.Chairman Selvaraj for Mr.T.R.Sundaram For respondents : Mr.S.Silambannan, S.C. for Mr.M.Umapathy JUDGMENT The appellant is the plaintiff in the suit. The plaintiff filed the suit seeking a prayer for declaration hat the defendants do not have any right to the properties described in the plaint Schedule. Ofcourse the plaintiff also sought for consequential relief of injunction. The plaintiff valued the suit under Section 25(d) of the Tamil Nadu Court Fees and Suit Valuation Act, 1955. 2.The trial court even before taking the plaint on file returned the plaint for two reasons. The first one is that the negative prayer sought for by the plaintiff will have to be properly couched, as the prayer as such sought for by the plaintiff is not maintainable. The second reason is that the said prayer for declaratory decree shall be valued under Section 25(b) of the Tamil Nadu Court Fees and Suit Valuation Act, 1955. As there was resistance on the part of the plaintiff, the matter was heard by the trial court and a final order was passed by the Trial Court reiterating the original stand that the prayer as such is not maintainable and that the declaratory relief sought for by the plaintiff with respect to the immovable property will have to be valued under Section 25(b) of the Tamil Nadu Court Fees and Suit Valuation Act, 1955. 3.The plaintiff took up the matter in appeal. The Appellate Court also having found that the negative declaratory relief sought for by the plaintiff is not maintainable and a declaratory relief properly couched will have to be valued under Section 25(b) of the said Act. 4.The second appeal was admitted on the following substantial questions of law: "a)Whether the suit claim is based on a family arrangement that had stood the test of time and has been accepted upon by the parties, whether the suit for negative declaration as prayed for is not maintainable. b)Whether valuation of the claim under Section 25(d) of the Court Fees Act and payment of Court Fee thereon is not correct." 5.Heard the submission made by the learned counsel appearing for the appellants as well as the learned Senior Counsel Mr.S.Silambannan for the respondents. 6.As rightly pointed out by the learned Senior Counsel appearing for the respondents, a negative declaratory relief has been sought for by the appellant. In other words, the plaintiff has sought for a declaration that the defendants do not have any right to the properties described in the plaint Schedule. Having thus prayed for, the said relief was valued under Section 25(d) of the Tamil Nadu Court Fees and Suit Valuation Act, 1955. 7.As per Section 34 of The Specific Relief At, 1963, a declaratory relief can be sought for by a person who is entitled to any legal character or to any right as to any property. He shall file a suit only as against a person denying or interested to deny his title to such character or right. A discretion has been vested with the Court to grant such a relief of declaration. In case, such a person who could have sought for further relief than a mere declaration of title omitted to seek such further relief, even such a declaratory relief sought for by such person cannot be granted. 8.The appellant herein asserts his right to the subject property in the plaint pleadings. He has also averred to in the plaint that the respondents denied the lawful right of the appellants. Having thus pleaded as per Section 34 of The Specific Relief Act, the appellant should have come out with a positive prayer for declaration of right and title claimed by the appellants. But unfortunately, a negative prayer has been sought for by the appellants in order to evade payment of court fee u/s.25(b) of the Tamil Nadu Court Fees and Suit Valuation Act. 9.As rightly pointed out by the learned Senior Counsel appearing for the respondents, a negative prayer in such circumstances cannot be sought for by the appellants. 10.In a case where a Bank guarantee is sought to be invoked, the party aggrieved can file a suit for declaration that the defendants are not entitled to invoke the Bank guarantee against the plaintiff. In a case where a fraudulent decree was obtained as against the plaintiff in an earlier litigation, such a plaintiff can seek for a negative declaratory relief that such a decree obtained fraudulently as against the plaintiff is not binding upon him. The plaintiff who challenges a compromise allegedly entered into between the plaintiff and the defendants, can very well seek for a negative declaratory relief to the effect that the compromise projected by the defendant is not binding upon the plaintiff. In a case where the termination from service is challenged by the employee, he can very well seek for a negative declaratory relief that the defendant has no authority to terminate him from service. 11.In all the above sample cases, it appears that the negative prayer has a direct bearing or impact on the plaintiff. The relief sought for negatively against the defendant in those sample cases has direct nexus with the plaintiff. But in the present case, the negative relief sought for hangs in the balance and it does not impact directly on the plaintiffs. Therefore, in such circumstances the plaintiffs cannot seek for a negative relief. Further, such a negative relief even if granted is not at all found to be a workable one, in as much as it does not bind the plaintiffs and the defendants in the suit. Further, the plaintiffs cannot usurp the title to the property without seeking for proper declaration of his right and title to the property. 12.In view of the above, accepting the submission made by the learned Senior Counsel appearing for the respondents, it is held that, in the peculiar circumstances of this case, the negative relief of declaration sought for by the plaintiffs is not maintainable. Therefore, the plaintiffs will have to couch the relief in a proper form. 13.In the instant case, a declaratory relief has been sought for relating to immovable property. Ofcourse, consequential injunction with respect to the said property also has been prayed for by the plaintiffs. It is not as if a relief has been sought with respect to some intangible right of the plaintiffs, as contented by the learned counsel appearing for the plaintiffs. Therefore, a declaratory relief sought for with consequential relief of injunction with respect to the immovable property will have to be valued only under section 25(b) and not under Section 25(d) of the Tamil Nadu Court Fees and Suit Valuation Act, 1955. 14.On a careful perusal of the order passed by the trial court, it is found that the trial court, having finally arrived at a decision that the suit has been undervalued, has not given an opportunity to the plaintiff to pay the Court fee. Having arrived at a conclusion that the negative prayer sought for as such is not maintainable and the Court fee has also not been properly valued and paid by the appellants, the trial Court has simply rejected the plaint against a spirit of Order 7 Rule 11 of the Code of Civil Procedure. 15.As per Order 7 Rule 11 of the Code of Civil Procedure, where the relief claimed is found under valued, the court shall give sufficient time to the plaintiff to correct the valuation and pay the Court fee within a time to be fixed and in case the plaintiff failed to comply with such direction to pay the required Court fee, the trial court is well within its powers to reject the plaint. But unfortunately, the trial court has not given sufficient time to the plaintiffs to correct the valuation and pay the proper Court fees before ever it rejected the plaint. 16.In view of the above, the order passed by the trial court and the judgment passed by the First Appellate Court is modified. An opportunity is given to the plaintiffs to amend the prayer in a proper form and value the suit if it is for a declaratory decree under Section 25(b) of the Tamil Nadu Court Fees and Suit Valuation Act, 1955. The appellants are also given one month time from the date of receipt of this judgment to pay the proper Court fee payable under Section 25(b) of the Tamil Nadu Court Fees and Suit Valuation Act, 1955 after amending the first relief relating to declaration suitably. 17.With the above directions, the second appeal is disposed of. No costs. pri To 1. The Learned Subordinate Judge, Udumalpet. 2. The Learned District Munsif, Udumalpet