Keshavan vs Umanatha Suvarna

B. Manohar, J.—Petitioner is the first defendant in O.S. No. 562/2010 on the file of the Civil Judge and JMFC, Mangalore, D.K. Being aggrieved by the order dated 22-06-2012 made on issues No. 4 and 5, the petitioner has filed this writ petition.

The brief facts of the case are as follows:

"The first respondent herein had instituted a suit in O.S. No. 562/2010 seeking for the following reliefs:

(1) A declaration that the general power of attorney dated 23-06-2009 purported to have been executed by the plaintiff in favour of the 2nd defendant, and also the Regd. Sale Deed dated 27-01-2010, registered as Doc. No. 4507/2009-10 in the office of the Sub-Registrar, Mangalore City, purported to have been executed by the 2nd defendant (on the strength of the alleged G.P.A. referred above) in favour of the 1st defendant, in respect of the plaint schedule property, is illegal, null and void and are not binding on the plaintiff.

(2) A permanent injunction restraining the defendants 1 and 2, their men and agents, from interfering with the plaintiff''s peaceful possession and enjoyment of the plaint schedule property in any manner, and

(3) Cost of the suit and such other and further reliefs.

In the plaint, the plaintiff has contended that he had availed the hand loan of Rs. 5,50,000/- (Rupees five lakhs fifty thousand only) from the first defendant, for which, the first defendant had taken signatures on some blank papers as well as on blank stamp papers and also taken blank signed cheques. In view of the dispute arose between the parties with regard to repayment, the first defendant made use of the signatures on various blank papers and prepared a General Power of Attorney in the name of the second defendant and on the basis of the said General Power of Attorney, a sale deed was executed in favour of the first defendant in respect of the suit schedule property without the knowledge of the plaintiff. In view of that the suit has been filed seeking for the above reliefs.

The first defendant/petitioner herein filed written statement denying the averments made in the plaint and contended that the plaintiff had entered into an agreement of sale dated 24-06-2004 with the first defendant wherein he has agreed to sell the suit schedule property. Accordingly, he had executed a Power of Attorney in favour of the second defendant and the power of attorney holder executed a sale deed. It is within the knowledge of the plaintiff and further contended that the court fee paid is insufficient and the court has no jurisdiction to try the suit since the sale deed had been executed for a sum of Rs. 12,00,000/- i.e. beyond the pecuniary jurisdiction of the Court and hence sought for dismissal of the suit.

On the basis of the above pleadings, the Trial Court framed necessary issues. Issues No. 4 and 5 were treated as preliminary issues, which read thus:

"4. Whether the plaintiff proves that valuation of the suit made by the plaintiff is correct; and

Whether this Court has jurisdiction to try and entertain the matter."

The Trial Court after considering the arguments addressed by the parties, by its order impugned in the above writ petition held both the issues in favour of the plaintiff. Relying upon the judgment of this Court reported in Bhaskar T.O. Vs. The State of Kerala and Others, held that the plaintiff prayed only for declaration of General Power of Attorney as null and void and the sale deed executed on the strength of General Power of Attorney is not binding on the plaintiff. Hence, the court fee paid is in accordance with law. The petitioner being aggrieved by the order passed by the Trial Court on issues No. 4 and 5 filed this writ petition.

Sri. G. Ravishankar Shastry, learned counsel appearing for the petitioner contended that the order passed by the Trial Court on issues No. 4 and 5 is contrary to law. The reasoning of the Trial Court is contrary to the facts of the case. The plaintiff had sought for declaration to the effect that GPA purported to be executed by him is null and void and consequently declare that the sale deed executed also null and void and the same is not binding on him. The intention of the plaintiff is to cancel the GPA and the registered sale deed. In such circumstances, the court fee is required to be paid u/s 38(1) of the Karnataka Court Fees and Suits Valuation Act, 1958 (hereinafter referred to as ''the Act'' for short). The reasoning of the Trial Court that the relief sought for by the plaintiff falls under Section 24(d) of the Act is contrary to law. In support of his contention, he relied upon the judgments reported in 2010(3) AIR KAR 899 (Smt. Muniamma v/s Chinnaiah); Smt. Suguna, Smt. Suphala and Smt. Sudarshana U. Vs. V. Sunil Kumar Holla, Smt. Sumana, U. Bhaskar Holla and State of Karnataka, and sought for allowing the writ petition.

On the other hand Sri. I. Tharanath Poojary, learned Advocate appearing for the first respondent argued in support of the order impugned and contended that in the suit the plaintiff had sought for relief of declaration declaring that power of attorney dated 23-06-2009 alleged to be executed by the plaintiff in favour of the second defendant and also the sale deed executed on the strength of the General Power of Attorney in favour of the first defendant is illegal. The plaintiff has not sought for possession of the property and for the declaratory relief, court fee has to be paid under Section 24(d) of the Act. In respect of the prayer of injunction, the court fee has to be paid under Section 24(c) of the Act and sought for dismissal of the writ petition.

I have carefully considered the arguments addressed by the learned counsel for the parties and perused the order impugned and other relevant records.

The records clearly disclose that the plaintiff filed a suit seeking for declaratory relief to declare that the General Power of Attorney dated 23-06-2009 purported to be executed by the plaintiff in favour of the second defendant and also sale deed dated 27-01-2010 purported to have been executed by the second defendant in respect of the suit schedule property is null and void and not binding on the plaintiff and also sought for permanent injunction restraining the defendants 1 and 2 from interfering with the peaceful possession of the suit schedule property. Admittedly, the plaintiff had not sought for possession of the suit schedule property. For declaratory relief, the court fee has to be paid under Section 24(d) of the Act. If the plaintiff were to ask for the declaratory relief and possession of the property, then the plaintiff has to pay the court fee as per Section 38(1) of the Act. In the absence of prayer for possession, in the declaratory suit, the court fee paid is in accordance with law. The court has jurisdiction to try the suit. The identical issue came before this Court in a judgment reported in Bhaskar T.O. Vs. The State of Kerala and Others, wherein this Court held as under:

"5. There is no dispute in this case that the plaintiffs are not seeking declaration of title in the plaint schedule immovable property. Plaintiffs contend that they are in possession of plaint schedule property. The plaintiffs are only seeking declaration that they are not bound by any arrangement or documents entered into between the defendants inter se pertaining to the suit schedule property. The plaintiffs are not seeking any consequential relief of injunction. On the other hand the nature of injunction prayed in the plaint is not consequential to the nature of declaration. The plaintiffs prayed for mandatory injunction and other reliefs are valued separately and separate Court fee is paid. Therefore the nature of declaration sought for by the plaintiffs do not fall under Section 24(b) of the Act. on the other hand, the nature of declaration sought for by the plaintiffs falls under Section 24(d) of the Act. The Trial Court committed an error in holding that the prayer in the plaint falls under Section 24(b) of the Act."

Further this Court also examined clause (d) of Section 24 of the Act in a judgment reported in Master K.P. Ponnappa and another Vs. K.P. Poovaiah and others, wherein this Court held as under:

" Clause (d) of Section 24 makes it manifestly clear that the Court fee payable in respect of the relief of declaration by which neither possession of the property is prayed nor any consequential relief of injunction with respect thereto is sought, it shall be computed on the amount at which the relief sought is valued in the plaint or rupees one thousand whichever is higher. Therefore, the additional relief of declaration added in the plaint by amending it squarely falls within the purview of Section 24(d). This relief of declaration is valued in the plaint at rupees one thousand and accordingly, the Court fee thereon was computed and paid as required by Section 24(d) the relief thus valued and Court fee computed thereon is therefore correct and proper. The Court below is clearly in error in holding the same as incorrect and improper and it is order impugned herein is liable to be set aside."

The judgments relied upon by the advocate appearing for the petitioner are not applicable to the facts of the present case. In the cases referred to above, the petitioner had sought for declaration with regard to the title and also possession. In those circumstances, this Court held that court fee has to be paid under Section 38 of the Act. The said judgment is not applicable to the present case in view of the law laid down by this Court. I find no infirmity or irregularity in the order passed by the Trial Court. The petitioner has not made out a case to interfere with the same. Accordingly, the writ petition is dismissed.