ORDER
M.R. Hariharan Nair, J.
1. Alleging that the sale deed in respect of the plaint A schedule property and two hypothecation deeds in respect of plaint B schedule property executed by the plaintiff were the result of fraud, O.S. 1683/97 was filed before the II Additional Munsiff’s Court, Thirvananthapuram by the present revision petitioner. The decree sought the following declaration.
“To pass a decree declaring that the sale deed No. 135/97, with respect to plaint A schedule any hypothecation deeds Nos. 196/97 and 197/97 with respect to plaint B schedule of the Thirvananthapuram Sub Register’s Office are void documents vitiated by fraud and misrepresentation and further that those documents are neither binding on the plaint A and B schedules not the plaintiff in any manner and to pass a decree of consequential prohibitory injunction restraining the defendants from forcibly dispossessing her from the plaint A schedule and the building thereon otherwise than by due process of law”.
2. The defendants, who entered appearance, contended that the court fee paid was insufficient and that actually setting aside of the two documents is required for which court fee is payable under S.40 of the Court Fees Act and not under S.25(b). The question was considered as a preliminary point and as per the impugned order, the trial court accepted the defendants’ contention and directed the plaintiff to pay court fee under S.40(1) of the Kerala Court Fees and Suits Valuation Act.
3. On the day the suit was taken up for payment of Court fee as above, the plaintiff submitted before the trial court that the order directing payment of court fees was under challenge before this Court. However, the plaintiff was found absent on a later day and no stay order, in fact, reached the trial court. In the circumstances, the trial court passed an order on 2.11.1998 rejecting the plaintiff. It is this order that is the subject matter of C.R.P. No. 2588/98.
4. During hearing today, the learned counsel for the petitioner placed reliance on the decision in Kumaran v. Chandran (1985 KLT SN 43 Case No. 69) in support of the contention that in a suit for declaration that a document is null and void, the plaintiff need pay court fee only under S.25(b). According to the learned counsel for the respondents, the said decision has no application to the facts of this case. A perusal of the aforesaid decision shows that the plaintiff had contended in that suit that the document executed by one Achuthan (3rd party) was not genuine and void. The court found that if the averments contained in the plaint that the purported execution of the documents was false; that the documents are not true and genuine and that Achuthan the purported executant was never a party to the documents are proved, there will be no document in the eye of law and that in that perspective a suit for declaration that the document is void was maintainable in which case the court fee payable was only under S.25(b) and not under S.40 of the Act. The position here is different in so far as the disputed documents, admittedly stand in the name of the plaintiff and the signatures therein are admitted.
5.Karuna Kuries & Finance v. Kunju Vareed & Ors. (1998 (2) KLJ 748) relied on by the petitioner was a case where the suit was filed seeking relief of declaration that a document was invalid and for cancellation of two documents. The suit was under S.53 of the Transfer of Property Act. Along with an application for amendment of the plaint to change the prayer from setting aside the two fraudulent documents as one to declare that the documents are fraudulent and created with intent to defeat and delay creditors, the petitioners also sought change of the valuation as one under S.25(d)(ii) of the Kerala Court Fees and Suits Valuation Act. The Court found that if the prayer actually amounts to setting aside the document, then the court fee will have to be paid under S.40 of the Act and that, that section would come into play only when it is necessary to set aside a decree or a document. It is also found that under S.53, what is required is only a declaration that the document is not binding on the creditors, and that circumstances, it is not necessary to pay court fee under S.40 of the Act.
6. The basic question therefore is whether the relief that the plaintiff can legitimately seek in the suit, on the averments in the plaint, is one for setting aside the document, in which case, court fee would be payable under S.40 or whether what is required is only a declaration, in which case, court fee need by paid only under S.25(b) of the Act.
7. I have perused the copy of the plaint that was made available to me during hearing today. The plaintiff’s contentions therein were that she was an illiterate lady; not of normal intellect and that a fraud was played on her which resulted in execution of the three documents. She had no case that she was not signatory to the documents in question which were duly recognised. The one and only case projected by her was that being the result of fraud, the document is ineffective.
8. S.19 of the Indian Contract Act deals with the effect of fraud. According to this section, when consent to an agreement is caused by coercion, fraud or misrepresentation, the agreement is a contract voidable at the option of the party whose consent was so caused.
9. It is therefore clear that the three documents which are the subject matter of the suit in question are actually voidable and not null and void even if the entire averments in the plaint are accepted as correct. Viewed from that perspective, the actual prayer that should have been included in the plaint, on the averments contained therein was only to set aside the document and not to declare the same as invalid. No provision of law has beeb placed before me which would show that the alleged fraudulent documents can be treated as void and not voidable.
10. In these circumstances, I am of the view that the court below was right in finding that the court fee payable is under S.40 of the Act and not under S.25(b). The order impugned in C.R.P. No. 2280/98 does not therefore suffer from any material illegality, irregularity or impropriety and that C.R.P. is hence dismissed.
11. I shall now consider the maintainability of C.R.P. No. 2588/98. The impugned order therein is one rejecting the plaint for non-payment of the court fee that had been ordered earlier. S.2(2) of the Code of Civil Procedure defines ‘decree’. It is made clear therein that it shall be deemed to include the rejection of a plaint and the determination of any question within S.144. The order impugned in C.R.P. 2588/98 is therefore a decree in the eye of law and as such appealable in nature. For that reason S.225 of the Code of Civil Procedure relating to revisional jurisdiction cannot be applied to that case. The C.R.P. NO. 2588/98 is hence not maintainable and dismissed.
12. The learned counsel for the petitioner submitted that even if the rejection is upheld, it may still be open to the petitioner to file appropriate suit in forma pauperis with valuation under S.40. I do not think it is a matter that can be dealt with in this judgment. Suffice it to say that if any such suit is filed, it will be considered on the merits as contemplated in O.VII R. 13 of the C.P.C.