REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3396 OF 2017 (Arising out of SLP (C) No.33692 of 2016)

J. Vasanthi & Ors.                                   … Appellant(s)  

VERSUS

N. Ramani Kanthammal (D) Rep. by     …Respondent(s) LRs. & Ors.       

J U D G M E N T

Dipak Misra, J.

This appeal, by special leave, is at the instance of the

appellants  calling  in  question  the  legal  propriety  of  the

judgment and order dated 16th March, 2016 passed by the

High Court of  Judicature at Madras, Bench at Madurai in

C.R.P. (MD) No. 847 of 2015 (PD), whereby the High Court

has  affirmed  the  order  passed  by  the  Principal  District

Judge, Dindigul in I.A. No. 94 of 2014 in Original Suit No. 20

of 2014 rejecting the prayer of the applicant/defendant for

dismissal of the Original Suit on the ground of payment of

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inadequate court fee by placing reliance on a wrong provision

of the Tamil Nadu Court Fees and Suit Valuation Act, 1955

(for brevity, “the Act”).

2. The facts in a nutshell are that the “A Schedule property”,

as appended to the plaint, was purchased by the plaintiff’s

father, late Raja Chidambara Reddiyar from one Balasundara

Iyyer on 12.08.1943 through document No. 412/1943 and

also “B schedule property” was purchased by him from one

Swaminatha  Iyyer  on  09.08.1943  through  document  No.

238/1943. After the purchase, he got the patta transferred in

his  name and paid the government taxes and enjoyed the

properties.  On 21.02.1948 through document No. 596/1948

plaintiff’s  father  made  a  sale  of  the  A  and  B  Schedule

properties  along  with  some  other  properties  in  favour  of

Sellammal w/o Rangoon Krishnasamy Reddiyar.  As averred

in  the  plaint,  the  A  and B schedule  properties  and other

properties  which  were  sold,  were  again  purchased  by  the

father of the plaintiff on 19.04.1948 through document No.

1469/1948  from  Sellammal  and,  thereafter,  changed  the

patta in his name bearing patta Nos.  621, 705, 2032 and

2133, and held the suit A and B Schedule properties during

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his  life  time.   As  pleaded,  the  plaintiff’s  father  died  on

07.10.1986 leaving behind the plaintiff and her sister Gowri

as  his  legal  heirs.   The  1st defendant  is  the  son  of  the

plaintiff.   The  2nd defendant  is  the  husband  of  the  3rd

defendant  and  the  4th defendant  is  their  son.  The  5th

defendant  is  the  father  of  3rd and  6th defendants  and

father-in-law of  the 2nd defendant.   The suit  was basically

filed  for  seeking  declaration  that  the  sale  deeds  dated

30.08.1991,  23.03.1993,  04.01.1994,  10.06.2002  and

11.03.2004 as per document Nos. Document Nos.922/1991,

Document  No.330/1993,  Document  No.2395/1994,

Document  No.1239/2002  and  Document  No.  214/2004,

respectively as null and void and for permanent injunction.

3. The  further  narration  of  the  factual  score  is  that  as

regards the “A Schedule property”, the plaintiff asked for a

loan of Rs. 1 lakh from the 2nd defendant, Janakiraman, who

in  turn,  suggested  that  an  agreement  for  sale  should  be

made  in  favour  of  his  brother-in-law,  the  6th defendant,

Saravanaprabhu.  The plaintiff agreed to make an agreement

for sale as proposed by the 2nd defendant.  As per the said

agreement an amount of Rs. 50,000/- was received by the

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plaintiff  and  her  son,  the  1st defendant  and  executed  an

agreement for sell.  

4. It  is  claimed  that  at  that  time,  the  2nd defendant

obtained  signatures  in  blank  papers.  Since  the  document

was  for  security  which  was  made  in  favour  of  the  6th

defendant on the request of the 2nd defendant, no action was

taken  regarding  document  No.  805/91.   It  is  further

contended  that  the  A  and  B  Schedule  properties  were

maintained by the plaintiff and her sister in the name of their

father only. When the plaintiff was making arrangements for

partition of the A and B Schedule properties on 10.03.2011,

it came to their knowledge that the defendant Nos. 2 to 6 had

created fabricated documents on the basis of the document

No.805/91.  It is urged in the plaint that the 2nd defendant

was a Sub-Registrar and taking advantage of his position the

sale agreement made in favour of the 6th defendant, who is

the brother-in-law of the 2nd defendant, fabricated sale deeds

were created by the defendant Nos. 2 to 6 as if the plaintiff

had executed the sale deed in favour of the 6th defendant.

5. The defendants filed I.A. No.94 of 2014 in O.S. No.20 of

2014 praying for directing the plaintiff to pay the court fees

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under Section 40 of the Act failing which to reject the plaint

since  the  plaint  was  highly  undervalued.   The  said

application for rejection of the plaint preferred under Order

VII Rule 11 of the Code of Civil Procedure was dismissed by

the  Principal  District  Judge,  Dindigul,  as  mentioned

hereinbefore.   The  trial  Judge,  while  dismissing  the  I.A.,

relied upon the decisions in G. Seethadevi v. R. Govindaraj

& Ors.1 ,  P. Thillai Selvan v.  Shyna Paul & Anr.2, and

Siddha Construction (P)  Ltd.  Rep.  By its Power Agent,

Anjay  Sharma,  No.32  Guruswamy  Road,  Chetpet,

Chennai  –  600031 v. M.  Shanmugam  &  Ors.3.  Be  it

clarified that the original plaintiff died during the pendency

of the case, i.e., on 15.01.2015, and her legal heirs have been

brought on record.   

6. Being  dissatisfied  with  the  aforesaid  order,  the

appellants preferred C.R.P. (MD) No. 847 of 2015 (PD).  It was

contended before the High Court that the learned trial Judge

has completely erred by rejecting the prayer inasmuch as the

plaintiff was seeking declaration for cancellation of the sale

deeds and hence, she was liable to pay the court fee under

1 (2011) 6 MLJ 399 2 (2014) 7 MLJ 732 3 (5) CTC 255 : (2006) 4 MLJ 924

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Section 40 of the Act and not under Section 25 (d) of the said

Act.  It  was also urged that the trial court has completely

erred by placing reliance on  Siddha Construction (supra).

The  said  stand  of  the  revisionists  was  resisted  by  the

opposite parties contending, inter alia, that when a plea had

been advanced that she had not executed any sale deed and

the documents were fabricated, then the court fee is payable

as  per  Section  25(d)  and  Section  40  of  the  Act  is  not

attracted. That apart, it was also urged that the payment of

the  court  fee  is  a  mixed  question  of  fact  and  law  and,

therefore,  the  plaint  was  not  liable  to  be  rejected  by

entertaining  a  petition  as  regards  evaluation  of  the  suit

property.  It  is  worthy  to  mention  here  that  the  issue  of

limitation was raised before  the trial  court  which was not

accepted as a ground for rejection of the plaint and the High

Court concurred with the same.  We do not intend to address

the issue of limitation as that can be dealt with at the stage

of trial of the suit.   

7. The  High  Court,  as  the  impugned  judgment  would

show, referred to the averments in the plaint which were to

the  effect  that  the  sale  deeds  were  not  executed  by  their

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predecessor-in-interest  and  she  had  not  received

consideration and, therefore, the principle enunciated in  G.

Seethadevi (supra) is squarely applicable to them. The High

Court further observed that on a perusal of the plaint, it is

manifest that the plaintiff had denied execution of the sale

deeds and in  that  context  the  court  fee  payable  could  be

under Section 25(d) and not under Section 40 of the Act.

8. Ms.  V.  Mohana,  learned senior  counsel  appearing  for

the appellants submits that  the court  fees has to be paid

under Section 40 of the Act when the plaintiff  has sought

declaration  for  treating  the  documents  as  null  and  void,

which basically amounts to seeking the relief of cancellation

of  the  said  documents.  It  is  urged  by  her  that  when the

requisite court fees as payable under the Act is not paid, the

court has no other option but to reject the plaint and the

said factum is obvious from the assertions in the plaint.   

9. Mr. G. Gowthaman and Mr. P. Soma Sundaram, learned

counsel for the respondent Nos. 1, 5, 6, 7 and 9 to 14 in

support of the order passed by the High Court contend that

the  reasons  ascribed  by  the  High  Court  are  absolutely

impregnable and in a case of the present nature, court fee

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has to be paid under Section 25(d) of the Act.  It is further

submitted by the learned counsel for the respondents that

the  sale  deeds  executed  in  favour  of  the  defendants  were

fraudulent ones, for they were never executed by the original

plaintiff  and  hence,  the  court  fees  is  required  to  be  paid

under Section 25(d) of the Act.

10. Section 40 of the Act reads as under:

“40. Suits for cancellation of decrees, etc.-- (1) 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

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be  deemed  to  be  a  suit  to  set  aside  a  decree within the meaning of this section.”  

[Emphasis added]

11. The singular issue that gains significance in this case is

that  the  original  plaintiff  was  a  party  to  the  transaction.

Section 40 of the Act, as we notice, provides that in a suit for

cancellation of a document, the court fee has to be computed

on the value of the subject-matter of the suit and such value

shall be deemed to be the whole decree or other document

which is sought to be cancelled, the amount or value of the

property for which the decree was passed or other document

was executed.  It also spelt out that a part of the decree or

other document is to be cancelled, such part of the amount

or  value  of  the  property.  On  a  careful  scrutiny  of  the

provision,  it  is  limpid that  it  refers  to the decree or other

document and in that context, it uses the word “value”.  The

stand of the respondents before the High Court as well as

before this Court is that the documents were sought to be

declared  as  null  and  void  on  the  ground  of  fraud  and,

therefore, Section 40 of the Act would not be attracted. In

this  regard,  we  may  notice  certain  decisions  of  the  High

Court of Madras.

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12. In  Siddha  Construction (supra),  the  learned  single

Judge has opined that for the value of the Court Fee payable

by the plaintiff the averments in the plaint alone are to be

considered.  In the said case, it was observed that the plain-

tiffs had not executed the sale deed and did not receive any

sale consideration and they had not alienated the property in

favour of any one.  In the said case, the third defendant was

the petitioner in the revision petition. The suit was filed to

declare that the sale deed executed by the first defendant in

favour of the third defendant was null and void. The High

Court referred to the decision in Alamelu v. Manickammal4

wherein it has been held that the plaintiff is not a party to

the sale deed and when he seeks only a declaration that the

impugned sale deed is null and void, it is subject to the value

of the suit under Section 25(d) of the Act.  The learned single

Judge also quoted a passage from  Gnanambal Ammal v.

Kannappa Pillai5 wherein it has been held:

“Where a plaintiff's case is that a document is sham and nominal, it need not be set aside, and the suit for relief on that footing is not one for cancellation, so as to attract the application of Section 40 of the Madras Court-fees and Suits Valuation Act, 1955. But even in such a case, if the plaintiff sues for can-

4 1979 (II) M.L.J. 8 5 1959(I) M.L.J. 353

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cellation he would have to pay Court-fee on that re- lief, whether it is necessary to have the deed can- celled or not.”

13. The learned counsel for the appellant would submit that

the said decision is distinguishable as in the said case the

plaintiffs were not parties to the impugned sale deed.  

14.  In G. Seethadevi (supra), the High Court followed the

principle  stated in  Siddha Construction (supra)  and held

thus:

“In the case on hand, it is to be seen that the case of the Petitioner is that she has not executed Power of Attorney in favour of one Bhaskaran so as to exe- cute the sale deed in favour of third parties. That apart,  it  is  contended that  the said Bhaskaran is unknown to the Petitioner and he is an employee of the first Respondent in his petrol bunk. When such statement has been made in the plaint, the court fee that has to be payable on the relief that has been sought for by the Petitioner viz., for declaration that the sale deed dated 25.04.2008 is null and void and not binding on the Petitioner, under Section 25(d) of the Act and not under Section 40 of the Act. The Pe- titioner has not admitted the execution of Power of Attorney. The court below is not justified in direct- ing the Petitioner to pay the court fee under Section 40 of the Act. In the case relied on by the Respon- dents, the Power of  Attorney was admitted by the Respondents/Plaintiffs  therein  and  hence,  this Court in the said decision has directed the party to pay the Court Fee under Section 40 of the Act.”

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15. In  K. Palaniswamy and another v. S.B. Subramani

and another6, the learned single Judge took note of the facts

that the plaintiff had filed a suit for declaring the sale deeds

executed by the first defendant in favour of the second and

third  defendants  as  null  and  void  and  unenforceable  and

would not bind the plaintiff and for consequential permanent

injunction  and an application under Order VII Rule 11 of

Civil Procedure Code (CPC) was filed as proper court fee had

not been paid and the suit was not properly valued and it de-

served to be rejected.   In the said case, the second respon-

dent was the power of attorney of the first respondent and af-

ter revocation of power of attorney, he had executed the sale

deed in favour of the defendants.  The High Court took note

of the fact that when the first respondent was not a party to

the  document,  the  relief  sought  for  in  the  suit  would  not

come under Section 40 of the Act and accordingly, dismissed

the civil revision.

16. Chellakannu  v.  Kolanji7,  dealt  with  a  civil  revision

that was filed by the plaintiff assailing the order of the trial

court directing the plaintiff to pay the court fee under Section

6 2007 (1) CTC 300 7 AIR 2005 Mad 405

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40 of the Act.  The narration of the facts in the plaint was ad-

verted to by the High Court and for proper appreciation of

the controversy that has been raised in the instant case, we

may reproduce the same:

“…  the  Suit  Property  belonged  to  his  Father- Pichamuthu.  Pichamuthu had two wives,  through whom he had Three Sons. Earlier, there was Parti- tion  in  the  family  of  the  Plaintiff  on  04.08.1971 wherein the Plaintiff and the Sons through the First Wife  have partitioned the  family  properties.  There was further partition between the Plaintiff and his Brothers in 1977. Item 1 of the Suit Property was allotted  to  one  Poomalai.  Items  2  and  4  - S.Nos.155/3  and  339/13A  were  allotted  to  the Plaintiff. First Defendant is the Wife of Shanmugam. Third Defendant has been keeping the First Defen- dant as his concubine. The Third Item was allotted to the Plaintiff's Sister. The Third Defendant is the Third Party. With the help of the First Defendant, the Third Defendant secured the Suit Properties - Item Nos.1 to 3 under a false representation that the Plaintiff is executing a Will in favour of the First Defendant.  On  that  mis-representation,  Plaintiff's thumb impression was obtained and two Sale Deeds dated 05.06.1995 and 23.08.1995 are said to have been obtained. Those Sale Deeds obtained from the Plaintiff under false representation is not binding on the Plaintiff. Hence, the Plaintiff has filed the Suit for Declaration that the Sale Deeds are not binding on him and for  Permanent  Injunction,  restraining the Defendants from in any way interfering with the Plaintiff's peaceful possession and enjoyment of the Plaint Schedule Items I, II and IV.”

17. The further stand taken by the plaintiff  was that the

sale deeds were obtained from him under fraud and hence,

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suit had been filed for declaration that the sale deeds were

not binding on the plaintiff and since the suit was not filed

for cancellation of the sale deeds, the defendants could not

insist the plaintiff to pay the court fee under Section 40 of

the Act.  The trial court recorded a find that the sale deeds

had been executed by the plaintiff  himself and  prima facie

the  sale  deeds  were  binding  on  the  executants  and  when

there is a prayer to declare the sale deeds as invalid, it tanta-

mounts to seeking cancellation of sale deeds and therefore,

court fee payable would be governed by Section 40 of the Act.

18. The  High  Court  posed  two  questions,  namely,  (i)

whether in the Suit filed for Declaration that the Sale Deeds

are invalid, Court Fee paid under Section 25(d) of the Act is

incorrect and (ii) whether the impugned order directing the

Plaintiff to pay the Court Fee under Section 40 of the Act suf-

fers from any infirmity warranting interference.  Dealing with

the factual matrix, the High Court observed:

“Thus,  the  Plaintiff  himself  is  a party  to  the Sale Deed; when the Party himself seeks to get rid of the Sale Deeds in substance it amounts to Cancellation of Decree. The Plaintiff might seek to avoid the Sale Deeds if he is not a party to the Sale Deeds. But, since  the  Plaintiff  himself  is  a  party  to  the  Sale Deeds before he is suing for any relief, the Plaintiff

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must  first  obtain  the  cancellation  of  the  Sale Deeds.”

And again:

“The word "Cancellation"  implies  that  the persons suing should be a party to the document. Strangers are  not  bound  by  the  documents  and  are  not obliged to sue for cancellation. When the party to the document is suing, challenging the document, he must first obtain cancellation before getting any further relief. Whether cancellation is prayed for or not or even it is impliedly sought for in substance, the Suit is one for cancellation. in the present case, when the Plaintiff attacks the Sale Deeds as having been obtained from him under fraud and mis-repre- sentation the Plaintiff  cannot seek for any further relief without setting aside the Sale Deeds.

x x x x x

The allegation on the Plaint in substance  mounts 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 cancel- lation of the Sale Deed. Learned District Munsif was right in ordering payment of Court Fee under Sec- tion  40  of  the  Act.  This  Revision  Petition  has  no merits and is bound to fail.”

Being of this view, the High Court dismissed the civil re-

vision and directed the plaintiff to pay court fee with further

stipulation that unless paid, plaint would stand rejected.

19. To appreciate the decision in P. Thillai Selvan (supra),

we have carefully gone through the same and we find the

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High Court has referred to Order VII Rule 11 CPC, adverted

to the issue of payment of court fee both as a question of fact

and law and opined that the trial court has rightly rejected

the petition.  Thus, the said decision does not really deal with

Section 40 of the Act.  

20. In  this  context,  we  may  profitably  refer  to  the  pro-

nouncement of this Court in  Suhrid Singh alias Sardool

Singh v. Randhir Singh and others8.  In the said case, the

Court referred to several elaborate prayers contained in the

plaint and summarized the same. The Court took note of the

fact that the issue had come before the trial court which had

come  to  hold  that  prayers  relating  to  the  sale  deeds

amounted  to  seeking  cancellation  of  the  sale  deeds  and,

therefore, ad volerem court fee was payable on the sale con-

sideration in respect of the sale deeds.   The said view was af-

firmed in the revision.  The Court addressed the core issue

pertaining to court fee payable in regard to the prayer for a

declaration that the sale deeds were void and not “binding on

the  coparcenary”,  and  for  the  consequential  relief  of  joint

possession and injunction.  After referring to the provisions

8 (2010) 12 SCC 112

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of the Court Fees Act, 1870 as amended in Punjab (as the

controversy  arose  from  the  High  Court  of  Punjab  and

Haryana), the Court held:

“Where the executant of a deed wants it to be an- nulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration  in  regard  to  a  deed  of  transfer/con- veyance, can be brought out by the following illus- tration relating to A and B, two brothers. A executes a sale deed in favour of C. Subsequently A wants to avoid the sale.  A has to sue for cancellation of the deed. On the other hand, if B, who is not the execu- tant of the deed, wants to avoid it, he has to sue for a  declaration  that  the  deed  executed  by  A is invalid/void and non est/illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If  A, the executant  of  the  deed,  seeks  cancellation  of  the deed, he has to pay ad valorem court fee on the con- sideration stated in the  sale  deed.  If  B,  who is  a non-executant, is in possession and sues for a dec- laration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of the Sec- ond Schedule of the Act. But if B, a non-executant, is not in possession, and he seeks not only a decla- ration that the sale deed is invalid, but also the con- sequential relief of possession, he has to pay an ad valorem court fee as provided under Section 7(iv)(c) of the Act.

Section  7(iv)(c)  provides  that  in  suits  for  a declaratory  decree  with  consequential  relief,  the court  fee  shall  be  computed  according  to  the

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amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the  suit  for  declaratory decree  with consequential relief is with reference to any property, such valua- tion shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7.”

21. On the basis of the aforesaid analysis, the Court opined

that the view expressed by the trial court and the High Court

was not justified in holding that the court fee is required to

be  paid  on  the  sale  consideration  mentioned  in  the  sale

deeds.

22. In Shailendra Bhardwaj and others v. Chandra Pal

and another9, the Court was dealing with an issue whether

suit filed seeking a declaration that a will and a sale deed are

void resulting in their cancellation fell under Section 7(iv-A)

of the Court Fees Act, 1870 as amended by the U.P. Amend-

ment Act (Act 19 of 1938) or Article 17(iii) of Schedule II of

the Court Fees Act, 1870 for the purpose of valuation. Be it

noted, in the said case the trial court had taken the view that

the court fee had to be paid under Section 7(iv-A) and the

High Court has concurred with the same.  The two-Judge

Bench took note of the provisions of the Court Fees Act, 1870

9 (2013) 1 SCC 579

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as amended by the U.P. Amendment Act (Act 19 of 1938) and

after referring to the same in detail, held thus:  

“On comparing the abovementioned provisions, it is clear that Article 17(iii) of Schedule II of the Court Fees Act is applicable in cases where the plaintiff seeks to obtain a declaratory decree without any consequential relief and there is no other provision under the Act for payment of fee relating to relief claimed. Article 17(iii)  of Schedule II  of the Court Fees Act makes it clear that this article is applica- ble in cases where the plaintiff  seeks to obtain a declaratory  decree  without  consequential  reliefs and there is no other provision under the Act for payment of fee relating to relief claimed. If there is no other provision under the Court Fees Act in case of a suit involving cancellation or adjudging/declar- ing void or voidable a will or sale deed on the ques- tion of payment of court fees, then Article 17(iii) of Schedule II shall be applicable. But if such relief is covered by any other provisions of the Court Fees Act, then Article 17(iii) of Schedule II will not be applicable.  On  a  comparison  between  the  Court Fees Act and the U.P. Amendment Act, it is clear that Section 7(iv-A) of the U.P. Amendment Act cov- ers  suits  for  or  involving  cancellation  or adjudging/declaring null and void decree for money or an instrument securing money or other property having such value.”

23. The Court took note of the fact that the suit was filed af-

ter the death of the testator and, therefore, on that basis ob-

served that the suit property covered by the will was required

to be valued.  The Court  further  opined that  since Section

7(iv-A) of the U.P. Amendment Act specifically provides that

20

payment of court fee in case where the suit is for or involving

cancellation or adjudging/declaring null and void decree for

money or an instrument, Article 17(iii) of Schedule II of the

Court Fees Act would not apply. The U.P. Amendment Act,

therefore, is applicable in the said case, despite the fact that

no consequential  relief has been claimed. Consequently, in

terms of Section 7(iv-A) of the U.P. Amendment Act, the court

fees have to be computed according to the value of the sub-

ject-matter and the trial court as well as the High Court have

correctly  held  so.   The  two-Judge  Bench  distinguished

Suhrid Singh’s case by expressing thus:  

“10. We are  of  the  view that  the  decision of  this Court in  Suhrid Singh (supra) is  not  applicable to the facts of the present case. First of all, this Court had no occasion to examine the scope of the U.P. Amendment  Act.  That  was  a  case  in  which  this Court  was  dealing  with  Sections  7(iv)(c),  (v)  and Schedule II Article 17(iii), as amended in the State of Punjab. The position that we get in the State of Pun- jab is entirely different from the State of U.P. and the effect of the U.P. Amendment Act was not an is- sue which arose for consideration in that case. Con- sequently, in our view, the said judgment would not apply to the present case.

11. The plaintiff, in the instant case, valued the suit at Rs 30 lakhs for the purpose of pecuniary jurisdic- tion.  However,  for  the  purpose  of  court  fee,  the plaintiff paid a fixed court fee of Rs 200 under Arti- cle 17(iii) of Schedule II of the Court Fees Act. The plaintiff had not noticed the fact that the abovemen-

21

tioned  article  stood  amended  by  the  State,  by adding the words “not otherwise provided for by this Act”. Since Section 7(iv-A) of the U.P. Amended Act specifically provides for payment of court fee in case where the suit is for or involving cancellation or ad- judging/declaring  void  or  voidable  an  instrument securing property having money value, Article 17(iii) of Schedule II of the Court Fees Act shall not be ap- plicable.”   

24.  The decisions in  Suhrid Singh (supra) and  Shailen-

dra Bhardwaj (supra) have to be understood in their proper

perspective.  There  was  U.P.  Amendment  in  Shailendra

Bhardwaj (supra). In  Suhrid Singh (supra) the Court was

dealing with a different situation.  Be that as it may, the val-

uation of a suit and payment of court fee shall depend upon

the special provision in a State if provided for. The view taken

by the Madras High Court in  Chellakannu (supra), in our

considered opinion, is the correct exposition of law.  

25. Another aspect needs to be noted.  As we notice from

the impugned judgment, the High Court has expressed the

view that payment of the court fee is a mixed question of fact

and law and that has to be decided on the basis of evidence.  

26. In this context, we have been commended to the deci-

sion  in  A.  Nawab  John  and  others  v.  V.N.  Subra-

22

maniyam10.  On a careful  perusal  of  the said decision,  we

find that the said authority nowhere addresses the issue that

is involved in the case at hand.  Proper valuation of the sub-

ject matter or under valuation is an aspect which can be con-

tested by the defendant, but the said contest is limited.  In

this regard, the two-Judge Bench has reproduced two pas-

sages  from  Rathnavarmaraja v.  Vimla11 which we  think

seemly to reproduce:  

“The Court Fees Act was enacted to collect revenue for the benefit of the State and not to arm a contest- ing party with a weapon of defence to obstruct the trial of an action. By recognising that the defendant was entitled to contest the valuation of the proper- ties in dispute as if  it  were a matter in issue be- tween him and the plaintiff and by entertaining peti- tions preferred by the defendant to the High Court in exercise of its revisional jurisdiction against the order adjudging court fee payable on the plaint, all progress in the suit for the trial of the dispute on the merits has been effectively frustrated for nearly five years. We fail to appreciate what grievance the defendant can make by seeking to invoke the revi- sional jurisdiction of the High Court on the question whether the plaintiff has paid adequate court fee on his  plaint.  Whether  proper  court  fee  is  paid  on  a plaint  is  primarily  a question between the plaintiff and the State. How by an order relating to the ade- quacy of the court fee paid by the plaintiff, the de- fendant may feel aggrieved, it is difficult to appreci- ate. Again, the jurisdiction in revision exercised by the High Court under Section 115 of  the Code of Civil Procedure is strictly conditioned by clauses (a)

10 (2012) 7 SCC 738 11 AIR 1961 SC 1299

23

to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the subor- dinate court or assumption of jurisdiction which the court does not possess or on the ground that the court has acted illegally or with material irregularity in the exercise of its jurisdiction. The defendant who may believe and even honestly that proper court fee has not been paid by the plaintiff has still no right to move the superior courts by appeal or in revision against  the  order  adjudging  payment  of  court  fee payable on the plaint. But counsel for the defendant says that by Act 14 of 1955 enacted by the Madras Legislature  which applied  to  the  suit  in  question, the defendant  has  been invested with a right  not only to contest in the trial court the issue whether adequate court fee has been paid by the plaintiff, but also to move the High Court in revision if an or- der  contrary  to  his  submission  is  passed  by  the court.  Reliance  in  support  of  that  contention  is placed upon sub-section (2) of Section 12. That sub- section, insofar as it is material, provides:  x x x x But this section only enables the defendant to raise a contention as to the proper court fee payable on a plaint and to assist the court in arriving at a just de- cision on that question. Our attention has not been invited to any provision of the Madras Court Fees Act or any other statute which enables the defen- dant to move the High Court in revision against the decision of the court of first instance on the matter of court fee payable in a plaint. The Act, it is true by Section 19 provides that for the purpose of deciding whether the subject-matter of the suit or other pro- ceeding has been properly valued or whether the fee paid is sufficient,  the court may hold such enquiry as it  considers proper and issue a commission to any other person directing him to make such local or other investigation as may be necessary and re- port thereon. The anxiety of the legislature to collect court fee due from the litigant is manifest from the detailed provisions made in Chapter III of the Act, but those provisions do not arm the defendant with

24

a weapon of technicality to obstruct the progress of the suit by approaching the High Court in revision against an order determining the court fee payable.”

(emphasis supplied)   

27.  On  a  perusal  of  the  decision  in  Rathnavarmaraja

(supra),  we find the controversy had arisen with regard to

proper valuation and the stand of the defendant was that the

court fee had not been properly paid and in that context, the

Court  has  held  what  as  we  have  reproduced hereinabove.

The issue being different, the said decision is distinguishable.

We may reiterate that proper valuation of the suit property

stands on a different footing than applicability of a particular

provision of an Act under which court fee is payable and in

such a situation, it is not correct to say that it has to be de-

termined on the basis of evidence and it is a matter for the

benefit of the revenue and the State and not to arm a con-

testing party with a weapon of defence to obstruct the trial of

an action.  It is because the Act empowers the defendant to

raise the plea of jurisdiction on a different yardstick.  

28.  In the ultimate anlaysis, we arrive at the conclusion

that the appeal is to be allowed, the impugned orders passed

by the trial court and the High Court, being unsustainable

25

are  to  be  set  aside  and  we  so  direct.   The  trial  court  is

directed to grant three months time to the plaintiff to pay the

requisite court fee.   There shall be no order as to costs.  

.….............................................J.  [Dipak Misra]

.…..............................................J.  [A.M. Khanwilkar]

               ...….....................................J.         [Mohan M. Shantanagoudar]

New Delhi; August 10, 2017.