Advocates:
['M/S THANGAVEL MA P', '', 'B DEVAGI THANGAVEL', 'M/S S LAKSHMANASAMY', '', 'S SIVAKUMAR COUNSEL', 'N GANESH']

C.R.P. No. 3476 of 2018

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 01.11.2022

CORAM

THE HONOURABLE MRS. JUSTICE T.V.THAMILSELVI

C.R.P.No. 3476 of 2018

and

C.M.P. No. 19453 of 2018

1 D.Shanmugam

S/o. Late Duraisamy

2 S.Shanthi

S/o Late D.Shanmugam

3 S.Dharani

D/o. Late D.Shanmugam

4 S.Dhayanandan

S/o Late D.Shanmugam

... Petitioners

Vs

1 V.Ponnusamy

S/o. Late.Veerappagounder

2 S.Selvaraj

S/o. Siddhagounder

3 S.Shamugam

S/o. Siddhagounder

... Respondents

1/9

https://www.mhc.tn.gov.in/judis

C.R.P. No. 3476 of 2018

PRAYER : Civil Revision Petition filed under Art. 227 of Constitution of

India, praying to set aside the fair and final order in I.A.No. 797 of 2017 in

O.S.No.108 of 2013 dated 20.07.2018 on the file of Sub-Court, Bhavani.

For Petitioners

: Mr.MA.P. Thangavel

For Respondents

: Mr.S.Lakshmanasamy

for R1 to R3

O R D E R

The Revision Petitioners herein are the plaintiffs in the suit in

O.S.No.108 of 2013, on the file of Sub-Court, Bhavani for the relief of

declaration to declare the sale deed dated 07.03.2013 as null and void on the

ground that it was fraudulently created by the 1^st defendant colluded with

the 3^rd defendant and other reliefs.

2. The said suit was contested by the defendants by filing their written

statement. Issues were framed and evidences were examined on the side of

plaintiffs and on the side of defendants, D.W.1 and 2 were examined. At

that time, the plaintiffs filed an application in I.A.No. 797 of 2017 under

Order 6 Rule 17 of C.P.C. praying to amend the pleadings, more

2/9

https://www.mhc.tn.gov.in/judis

C.R.P. No. 3476 of 2018

particularly, with regard to payment of court fee. The said application was

strongly objected by the defendants stating that even at the time of filing

written statement, he disputed the prayer claimed by the plaintiffs, but after

completion of examination of witnesses, they filed this application to amend

the prayer, as such is not maintainable in law and also contended that no

reason assigned by the plaintiff for filing the said application belatedly. On

considering submissions of both sides, the trial court dismissed the

application holding that after completion of evidence, the said application

was filed and if the said application is allowed, there may be a change in the

character of suit. Challenging the said findings, the plaintiffs preferred this

Civil Revision Petition.

3. The learned counsel for Revision Petitioners submitted that the trial

court failed to take note of the fact that in a suit for declaration, the

plaintiffs have to prove their title over the property by adducing their

evidence, because these plaintiffs are not parties to the document and the

present application was filed only to amend the court fee because at the time

of filing of the suit, he paid a court fee under Sec.27(c) of Tamil Nadu Court

3/9

https://www.mhc.tn.gov.in/judis

C.R.P. No. 3476 of 2018

Fees and Suit Valuation (Amended) Act, 2003 (hereinafter called as 'Act')

due to lack of due diligence. Considering the prayer in the plaint, the

plaintiffs have to pay court fee under Sec.40 of the said Act, however, if he

is not permitted to pay the said court fee, his valuable right with regard to

the property will be defeated. Furthermore, amending the plaint with regard

to court fee would not change the character of the suit. But, without

appreciating those legal aspects, the trial court erroneously dismissed the

application. Hence, he prayed to set aside the same.

4. The learned counsel appearing for respondents/defendants

submitted that even at the time of filing written statement itself, they

categorically stated the payment of court fee paid by the plaintiffs is

incorrect, but the plaintiffs not taken any