G. S. Singhvi, J. - (1.) LEAVE granted.
(2.) THIS appeal filed for setting aside order dated 21 -7-2008 passed by the learned Single Judge of Kerala High Court in Writ Petition No.21820 of 2008 whereby he declined to interfere with the direction given by Sub Judge, Palakkad (hereinafter described as 'the trial Court') to the appellant to pay court fee on the market value of the plaint schedule property raises an important question of law relating to interpretation of Section 40 of the Kerala Court Fees and Suits Valuation Act, 1959 (for short, 'the Act'). The appellant owned 9.98 acres rubber plantation. She executed power of attorney No.376/2006 in favour of her own daughter (respondent No. 1 herein). After sometime, respondent No.1 transferred the property to her husband (respondent No.2 herein) by registered sale deed No. 1784/2007. The appellant filed O.S. No.231/2007 for cancellation of the power of attorney by alleging that respondent No. 1 had misused the same and sold the property to her husband. By an order dated 21-5-2008, the trial Court directed the appellant to pay court fees on the market value of the plaint schedule property. The appellant challenged that order in Writ Petition No. 17032/2008 (C) which was disposed of by the learned Single Judge of Kerala High Court vide his order dated 26-6-2008, the relevant portion of which reads as under: "The learned counsel appearing for the petitioner further submitted that in view of the contentions raised in the plaint, petitioner has to file an application for amendment of the plaint modifying the relief sought for. In the nature of the contentions raised in the plaint, an amendment of the relief is definitely necessary, as found by the learned Sub Judge. In such circumstances, Writ Petition is disposed granting liberty to the petitioner to amend the plaint and to pay the necessary court fee payable on such pleading. It is made clear that the fact that a time-limit is fixed by this Court will not prevent the court from granting amendment, as it is necessary for an appropriate adjudication of the dispute involved in the suit. It is made clear that the actual court fee payable by the plaintiff is to be decided by the trial Court afresh, taking into consideration the relief sought for in the plaint, in the light of the amendment of the pleading." In furtherance of the direction given by the High Court, the appellant applied for and she was granted permission to amend the plaint and to incorporate prayer for cancellation of the sale deed executed by respondent No. 1 in favour of respondent No.2. In the amended plaint, value of the property was shown as Rs.7,00,000 and accordingly, the court fees was paid. However by an order dated 3-7-2008, the trial Court directed the appellant to pay court fee on the market value of the plaint schedule property which was assessed at Rs.12 lakhs per acre.
(3.) WRIT Petition No.21820/2008 filed by the appellant against the above mentioned order was dismissed by the learned Single Judge, who referred to the judgments of the Division Bench in Krishnan Damodaran v. Padmanabhan Parvathy, 1972 K.L.T.774 P.K. Vasudeva Rao v. Hari Menon((A.I.R. 1982 Kerala 35') 2006 and Pachayammal v. Dwaraswamy Pillai K..L.T. 527 and held that in terms of Section 40 of the Act, the writ petitioner is required to pay court fees on market value of the property and not on the value specified in the sale deed. Shri Bechu Kurian Thomas, learned'counsel for the appellant argued that the interpretation placed by the trial Court and the High Court on Section 40 of the Act is ex facie erroneous and impugned order is liable to be set aside because that section does not provide for payment of court fee on the market value of the property for which the document, which is subject-matter of the suit, was executed. Learned counsel emphasized that in terms of Section 40( 1), court fees is required to be paid on the value of the property for which the document was executed and submitted that the appellant had correctly paid the court fees as per the value of the property specified in the sale deed i.e., Rs. 7 lakhs. In support of his arguments, the learned counsel relied upon the judgments of the learned Single Judges of Madras High Court in Andalammal v. B. Kannaiah (1971) II M.L.J 205 and of Andhra Pradesh High Court in Allam Venkateswara Reddy v. Golla Venkatanarayana and others' A.I.R. 1975 Andhra Pradesh 122;