2012 Supreme(Kar) 290

High Court of Karnataka
S. ABDUL NAZEER, J.

V. Prabhakar
Versus
K. Raja & Others
W.P. No. 2966 to 2967 of 2012 (GM-CPC)
Decided On : 24-05-2012

Headnote:KARNATAKA COURT FEES & SUITS VALUATION ACT, 1958 - Section 38: [S. Abdul Nazeer, J] Payment of Court fee under - Prayer sought to declare that the sale deed in question is null and void and not binding on the plaintiff - Ancillary relief was also sought for mandatory injunction - Substantive relief sought in the plaint for cancellation of the sale deed - Suit is valued under Section 24 of the Act for the purpose of Court fee - Trial Court directing the plaintiff to value the suit under Section 38 of the Karnataka Court Fees and Suits Valuation Act, 1958 - Held, In order to determine the proper Court fee payable by the plaintiff, the Court has to first ascertain the substantial relief sought for in the plaint. In a multifarious suit, while determining the proper Court fee payable on the plaint, the Court has to see the nature of the suit and the reliefs claimed. If a substantive relief is claimed, though clothed in the garb of a declaratory decree with a consequential relief, and if satisfied, that it is not a mere consequential relief but a substantive relief, the can demand the proper Court fee on that relief, irrespective of the arbitrary valuation put by the plaintiff in the plaint on the ostensible consequential relief. Further, Section 38(1) of the Act provides for payment of Court fee 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 of extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property. On facts held, In the instant case, the substantive relief sought in the plaint is for cancellation of the sale deed in the garb of a declaratory decree. The second relief is for grant of prohibitory injunction though styled as for mandatory injunction, which is ancillary to the main relief. If the relief is sought only as ancillary to the main relief, the plaintiff has to be charged only on the value of the main relief as provided in Section 6 of the Act. Therefore, the plaintiff has to value the suit for the purpose of Court fee under Section 38 and not under Section 24 of the Act.

       KARNATAKA COURT FEES & SUITS VALUATION ACT, 1958 - Section 38: [S. Abdul Nazeer, J] Meaning of the expression "value of the subject matter" mentioned therein - Whether the said expression means market value of the property as on the date of presentation of the plaint or the property is Section 38(1) must be understood as the market value of the property and the amount of consideration mentioned in the deed sought to be cancelled. Further, Section 7 of the Act provides for determination of the market value of the property for the purpose of Section 38 and certain other provisions of the Act. Sub-Section (1) of Section 7 states that where the fee payable under the Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint. Thus, it is clear that in a suit for cancellation of the sale deed, the Court fee has to be computed on the basis of the market value of the property, which is the subject matter of the sale deed in questions as on the date of the presentation of the plaint. The market value has to be determined in accordance with Section 7 of the Act.

       CODE OF CIVIL PROCEDURE, 1908 - Order 47 Rule 1 r/w Section 114: [S. Abdul Nazeer, J] Review of the Judgment or Order - Requirement to entertain a review petition - Held, Permissibility of review must be such which is apparent on the face of the record and not an error which has to be fished out and searched. It is settled that the first and foremost requirement of entertaining a review petition is that the Order, review of which is sought suffers from error apparent on the face of the record and permitting the Order to stand will lead to failure of justice. In the absence of any such error, finality attached to the Judgment/Order cannot be disturbed. An error, which is not self evidence and has to be detected by the process of reasoning can hardly be said to be error apparent on the face of the record, justifying the Court to exercise the power of review. Further held, there is a real distinction between a mere erroneous decision and an error apparent on the face of the record. Where error on a substantial point of law stares in the face, and there could reasonably be no two opinions, is a clear case of error apparent on the face of the record. An error, which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions can hardly be said to be an error apparent on the face of the record. It is also settled that when an error is parent and can be located without any elaborate argument, without any scope for any controversy with regard to such error; which as if, at a glance stares at the face can be said to be one apparent on the face of the record. Re-agitating the points already decided is impermissible in review proceedings.