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.

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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

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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

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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 mentio