The main legal point established in the judgment is that the petitioners are liable to pay the ad valorem court fee as the sale deeds executed by the respondent No.3 based on the power of attorneys executed by the petitioners are not void but may be voidable.

Judgment

1. This petition under Article 227 of the Constitution is at the instance of the plaintiff in Civil Suit No.21-A/2013 challenging the order of the trial Court dated 5.9.2013, by which the trial Court has directed the petitioners-plaintiff to pay ad valorem court fee.

2. In brief, the petitioners had filed the suit for declaration of title and permanent injunction as also declaring the sale deed dated 28.3.2010 and 18.3.2011 as null and void and not binding on the petitioners. In the said suit, the respondents had filed an application under Order 7 Rule 11 of the C.P.C. raising an objection that the petitioners are liable to pay the ad valorem court fee as per Section 7(C) of the Court Fee Act and on the failure to pay the ad valorem court fee, the suit be dismissed. The trial Court by the impugned order dated 5.9.2013 has upheld the said objection by allowing the said application, and has directed the petitioners to pay the ad valorem court fee.

3. Learned counsel appearing for the petitioners submits that the trial Court has committed an error in directing the payment of the ad valorem court fee without appreciating that the power of attorney was got executed by the respondent No.2 in favour of the respondent No.3 fraudulently and in such a case the sale deed being void, no ad valorem court fee is required to be paid. He has further submitted that no power of attorney was given by the petitioners for sale of the land.

4. Counsel for the respondents opposing the writ petition, has submitted that the sale deed has been executed on the basis of the registered power of attorney executed by the petitioners and, therefore, in terms of the settled position in law the petitioner is liable to pay the full ad valorem court fee, since it is not a case of void sale.

5. Having heard the learned counsel for the parties and on the perusal of the record, it is noticed that the trial Court has elaborately dealt with the issue of payment of court fee in the light of the various judgments on the point. The trial Court has noted the plaint averment that the power of attorney dated 10.9.2009 and 28.1.2011 was executed by the petitioners in favour of the respondent No.3 and on the basis of those power of attorneys, the sale deeds dated 28.3.2010 and 18.3.2011 were executed. It has further been noted that in the plaint, the petitioners have admitted the execution of the power of attorney and those power of attorneys have not been cancelled. The trial Court on reaching to the conclusion that the sale deeds on the basis of the power of attorneys so executed by the petitioners, are not void but may be voidable, has held the petitioners liable to pay the ad valorem court fee. Such a reasoning of the trial Court does not suffer from any error. The trial Court has neither committed any jurisdictional error, nor has committed any error in exercise of jurisdiction. Thus, no ground for interference is made out.

6. A perusal of the plaint reveals that the petitioners have pleaded that by trusting the respondent No.2, they had executed the power of attorney dated 10.9.2009 and 28.1.2011 in favour of the respondent No.3. These power of attorneys are registered power of attorneys. The petitioners have raised the plea that by these power of attorneys, they had not authorized the respondent No.3 to sale the suit land. The Supreme Court in the matter of Ningawwa Vs. Byrappa Shiddappa Hireknrabar and others reported in AIR 1968 SC 956 has taken the view that a contract or other transaction induced or tainted by fraud is not void, but only voidable at the option of the party defraud and until it is avoided, the transaction is valid.

It has further been held that the legal position will be different if there is a fraudulent misrepresentation not merely as to the contents of the document but as to its character. The authorities make a clear distinction between fraudulent misrepresentation as to the character of the document and fraudulent misrepresentation as to the

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