Plaint cannot be rejected when there is cause of action.

(Revision Petition filed against the order dated 26.10.2004 in I.A.No.265/2004 in O.S.No.13/2002 on the file of the District Munsif, Tambaram.)

This Revision Petition has been filed against the order dated 26.10.2004 passed in I.A.No.265/2004 in O.S.No.13/2002 on the file of the District Munsif, Tambaram.

2. The 3rd defendant in the suit is the Revision Petitioner herein.

3. Respondents 1 to 4 herein filed O.S.No.13/2002 to declare that the sale deed executed by the 1st defendant (5th respondent herein) to and in favour of the 3rd defendant (Revision Petitioner) on 31.10.2001 in respect of the suit schedule property as null and void and also for consequential injunction. The Revision Petitioner as 3rd defendant has filed I.A.No.265/2004 under Order 7 Rule 11 of the Code of Civil Procedure to adjudicate on the two issues of limitation and valuation as preliminary issues and dismiss the suit with costs. The trial court by order dated 26.10.2004 dismissed I.A.No.265/2004 and aggrieved by the same, this Civil Revision Petition has been filed under Article 227 of the Constitution of India.

4. Heard the learned counsel for the petitioner. Though notice having been served on the respondents there was no representation for them either in person or through counsel.

5. The reasons given by the Revision Petitioner for rejecting the plaint is that instead of valuing the suit under Sec.40(1) of the Tamil Nadu Court Fees and Suits Valuation Act the plaintiffs valued the suit under Sec.25(b) of the Act and the suit itself is barred by limitation. It is their further case that if the suit is valued under Sec.40(1) of the Act, then the trial court at Tambaram will not have jurisdiction and the suit has to be transferred to an appropriate court.

6. The trial court dismissed I.A.No.265/2004 by holding that the issue of limitation does not arise as the sale deed was executed on 31.10.2001 and the suit was filed in 2002 itself, i.e., within 3 years. I do not find any infirmity in the above finding.

7. Insofar as the Court Fee is concerned, the trial court after relying on the judgment of this court reported in 1979 (II) M.L.J. 8 (Alamelu v. Manickammal) held that when 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 Sec.25(d) of the Court Fees Act.

8. The learned counsel for the petitioner contended that the trial court is wrong in observing that the suit has been valued properly and in support of his contentions he relied on the decisions of this court reported in,

(1) 1959(I) M.L.J. 353 (Gnanambal Ammal v. Kannappa Pillai) and

(2) 1971(II) M.L.J. 205 (Andalammal v. B.Kanniah).

9. In 1959(I) M.L.J. 353 (supra), this court has held as follows:-

"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 cancellation he would have to pay Court-fee on that relief, whether it is necessary to have the deed cancelled or not."

10. In 1971(II) M.L.J. 205 (supra), this court observed as under:-

"Section 40 of the Act refers to "the amount or value of the property for which the documents was executed". The legislative intent is clear that the basis for the purpose of valuation shall be the amount or value mentioned in the document sought to be cancelled. There is no warrant for ignoring the plain language of the section and holding that the value shall be the market value of the property."

11. For deciding the value of the Court Fee payable by the plaintiff the averments in the plaint alone are to be considered. In O.S.No.13/2002, the prayer sought for is to declare the sale deed executed by the 1st defendant (the 5th respondent herein) in favour of the 3rd defendant (Revision Petitione