Point of Law: Section 38 will not attract when consideration is not shown in document which is in question.

ORDER :

This revision petition is filed challenging the order dated 21.04.2023 passed on I.A.No.3 filed under Order VII Rule 11 read with section 151 of CPC in O.S.No.439/2022.

2. The factual matrix of the case of the plaintiff before the Trial Court is that the defendants have obtained the document of release deed by misrepresentation and fraud. Hence, sought for the relief of cancellation of registered release deed dated 01.07.2019 as well as other reliefs.

3. The defendants appeared and filed an application under Order VII Rule 11 read with Section 151 of CPC praying the Court to reject the plaint as there is no cause of action, Court fee paid is insufficient and plaint being not verified and not filed in accordance with law. In support of this application, an affidavit is sworn to by defendant No.1 contending that the plaintiff is his younger sister who is currently in Bengaluru and no proper verification of the plaint since it reflects that she has signed the plaint in Australia but it is filed at Bengaluru and verifying affidavit is also deposed at Australia and not at Bengaluru which is irregular, illegal and not in accordance with law. It is also further sworn to that since she had already received adequate financial assistance while constructing residence at Shivamogga by her brothers and her brothers had supported her financially while her husband was medically suffering Parkinsons and Alzeimers. It is also sworn to that the averments of the plaint are false and no power is given to the GPA holder to institute the suit. It is also sworn to that the Court fee paid in a sum of Rs.25/-is improper for cancellation of document is sought and ought to have been paid on the market value of each property since there is no valuation of each property hence, the plaint is liable to be rejected and described the item Nos.1 to 6 in paragraph 9 and contended that suit ought to have been valued for the purpose of Court fee under Section 38 of Karnataka Court Fees and Suit Valuation Act hence, the plaint is liable to be rejected.

4. The respondent/plaintiff resisted this application by filing the objection statement contending that the document was signed in Australia as the plaintiff and her son who is a GPA holder were in Australia when the cause of action arose and were not in a position to travel back to India due to several travel restrictions in Australia. The precaution was taken to ensure that the verification was done and the documents were properly executed. Hence, the very contention that no authorization to file the suit cannot be accepted when there is a proper verification. It is also contended that in the plaint there is clear cause of action is mentioned as it was arose on 29.09.2021 and in the plaint it is specifically pleaded with regard to the cause of action and narrated with regard to the misrepresentation and fraudulently obtained the document dated 01.07.2019 hence, sought for an appropriate order. It is also contended that no consideration was shown in the document and the plaintiff has sought for cancellation as the document as the same is void and not binding on her and hence, consideration is not shown in the document. When the document is a fraudulent one and void document, the question of paying the Court fee does not arise. Hence, the contention of the counsel for the defendants that not paid the proper Court fee cannot be accepted and Section 38 of the Act will not attract.

5. The Trial Court having considered the grounds urged in the application as well as in the statement of objections rejected the application in coming to the conclusion that while considering Order VII Rule 11 of CPC, the Court has to look into the averments of the plaint. The plaintiff has sought for the relief of cancellation of the document on the ground that the same was obtained by misrepresentation and by committing fraud and the same requires to be tried and the same cannot be dismissed at the threshold and also mentioned the cause