Madras High Court
Regila Prem vs Chellappan ..1St on 20 August, 2010
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20/08/2010
CORAM
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
C.R.P.(PD)(MD)No.1878 of 2009
and
M.P(MD)No.1 of 2009
Regila Prem ..Petitioner/Petitioner/2nd defendant
Vs.
1.Chellappan ..1st respondent/1st Respondent/1st defendant
2.Vasanthakumari
3.Pushpakumari ..2nd and 3rd respondents/2nd & 3rd respondents/
Plaintiffs
Prayer
Civil Revision Petition filed under Article 227 of the
Constitution of India, to set aside the order passed in I.A.No.402 of 2009 in
O.S.No.340 of 2009, dated 26.10.2009, on the file of the I Additional District
Munsif Court, Kuzhithurai.
!For Petitioner ... Mr.S.Meenakshi Sundaram
^For Respondents ... Mr.K.Sreekumaran Nair
:ORDER
Heard both sides
2.The 2nd defendant in O.S.No.340 of 2009, on the file of the I Additional District Munsif, Kuzhithurai, is the revision petitioner.
3.The above suit O.S.No.340 of 2009 was filed by the respondents 2 and 3 herein against the revision petitioner and the first respondent herein for declaration of title of the plaintiff in respect of Item No.1 and 2 of the plaint schedule property and for consequential injunction. The plaintiffs valued the suit under section 25(b) of the Tamil Nadu Court Fees and Suit Valuation Act and paid the court fee. The revision petitioner after filing the statement filed an application under section 151 CPC in I.A.No.402 of 2009 stating that the plaint has not been properly valued and the court has no pecuniary jurisdiction to try the case and therefore, that has to be decided as a preliminary issue. The case of the revision petitioner was that the suit properties are worth more than 6,92,135/- and the plaintiff is not in possession of the property and if the correct market value of the suit property is taken into consideration, the District Munsif Court has no jurisdiction to entertain the suit and therefore, that issue has to be decided as a preliminary issue.
4.The plaintiffs contested the application stating that the application is not maintainable and the jurisdiction point is a mixed question of fact and law and as such, the same cannot be decided as a preliminary issue and the court has to number the suit on the basis of the valuation given in the plaint and if the defendants raised any dispute regarding the valuation of the property, an issue can be framed to that effect and the same can be tried along with other issues and it cannot be tried as a preliminary issue. The lower Court held that the issue of jurisdiction of court fee is not a pure question of law and it cannot be decided as preliminary issue as it requires evidence to be adduced on either side and following the judgments reported in (2000)3 MLJ 342, in the case of M.Thandavaraya Poosalai and five others vs. M.Periyasamy Asari and nine others and (2008)1 MLJ 75, in the case of A.Chinnaraj and another vs. Saroja Ammal, dismissed the application and aggrieved by the same, this civil revision petition is filed by the 2nd defendant.
5.Mr.S.Meenakshi Sundaram, the learned counsel appearing for the revision petitioner submitted that the lower Court failed to appreciate the distinction between the application filed under Order 14 Rule 2, to decide the preliminary issue and an application filed under section 12(2) of the Tamil Nadu Court Fees and Suit Valuation Act and when an application is taken by the defendant under Order 14 Rule 2 to decide the jurisdiction of the court as a preliminary issue, this court has consistently held that the issue of pecuniary jurisdiction is a mixed question of fact and law and cannot be decided as a preliminary issue and it can be tried along with other issues. Further, he fairly conceded that the court has to take into consideration the valuation of the plaint, while numbering the suit but he makes a distinction by stating that once the defendant filed the application under section 12(2) of the Tamil Nadu Court Fees and Suit Valuation Act, a duty is cast upon the court to decide the preliminary issue regarding the pecuniary jurisdiction of the court and that cannot be postponed to be tried along with other issues.
6.In support of his contention, the learned counsel appearing for the revision petitioner relied upon judgment of this Court reported in 2002(2) CTC 513, in the matter of V.R.Gopalakrishnan vs. Andiammal. He also relied upon the judgment of the Honourable Supreme Court reported in (1988)2 SCC 575, in the case of Abdul Hamid Shamsi vs. Abdul Majid and others and (1980)1 SCC 616, in the case of Meenakshisundaram Chettiar vs. Venkatachalam Chettiar, in support of his contention.
7.Mr.K.Sreekumaran Nair, the learned counsel appearing for the respondents submitted that this court has consistently held that issue of jurisdiction and court fee depends on the evidence and it is not a pure question of law and it cannot be decided as preliminary issues and relied upon the judgment reported in (2008)1 MLJ 75, in the case of A.Chinnaraj and another vs. Saroja Ammal and 1996(I)CTC 280 in the case of G.Krishnamurthy & Two others vs. Sarangapani & another, 1999(II)CTC 88, in the case of Raman vs. Rahmathunnisa and two others and (2000)3 MLJ 342, in the case of M.Thandavaraya Poosali and five others vs. M.Periasamy Asari and nine others, in support of his contention.
8.I have given my anxious consideration to the submission made by both the counsels.
9.The issue to be decided in this civil revision is when an application is filed under Section 12(2) of the Tamil Nadu Court Fees and Suit Valuation Act to decide the valuation of the property as a preliminary issue, can the court postpone the decision of that issue along with other issues or decide the issue as preliminary issue.
10.It is contended by the learned counsel appearing for the revision petitioners, Mr.S.Meenakshi Sundaram, that when an application is filed under section 12(2) of the Tamil Nadu Court Fees and Suit Valuation Act, the court has to decide that issue as a preliminary issue and that cannot be postponed having regard to the language of section 12(2) of the Tamil Nadu Court Fees and Suit Valuation Act.
11.To appreciate the contention of the learned counsel appearing for the revision petitioner, we will have to see the provision of section 12(2) of the Tamil Nadu Court Fees and Suit Valuation Act, which is as follows:- "Any defendant by his written statement plead that the subject matter of the suit has not been properly valued or that the fee paid is not sufficient and all questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merit of the claim."
12.It is further stated that in the event of the court coming to the conclusion that the subject matter of the suit has not been properly valued or the court fee paid was not sufficient, the court shall fix a date, for amending the plaint in accordance with the Court's decision and for payment of deficit court fee and also provides for rejection of the plaint in the event of non compliance of the decision of the court. Therefore, a reading of this section will make it clear that when an application has been filed under the provisions of 12(2) of the Tamil Nadu Court Fees and Suit Valuation Act, to decide the valuation of the plaint, the Court is bound to decide that issue as preliminary issue and give a finding.
13.The learned counsel Mr.R.Meenakshi Sundaram further submitted that though the application was filed under section 151 of C.P.C. and it has not been filed under section 12(2) of the Tamil Nadu Court Fees and Suit Valuation Act, it has been understood as the petition filed under section 12(2) of the Act by the parties and therefore, the issue has to be decided as a preliminary issue as per the above section and it cannot be decided along with other issues.
14.Mr.K.Sreekumaran Nair, the learned counsel appearing for the respondents submitted that this court has consistently held that the valuation of the plaint as stated by the plaintiff has to be accepted as prima facie evidence and if any issue is raised regarding the valuation of the plaint, an issue can be framed to that effect and that can be decided along with other issues.
15.He further submitted that there is no distinction between the preliminary issue to be decided under Order 14 Rule 12 and Section 12(2) of the Tamil Nadu Court Fees and Suit Valuation Act and considering the various judgments rendered by this court and the Honourable Supreme Court when the preliminary issue involves the question of law and fact, the same cannot be tried as preliminary issue and the issue of jurisdiction of the court was also held to be a mixed question of law and fact and it is not a pure question of law and hence, the same cannot be decided as a preliminary issue.
16.It is seen from the judgment relied upon the learned Counsel appearing for the respondents that this court and the Honourable Supreme Court has held that issue of jurisdiction is not a pure question of law and only pure question of law can be decided as a preliminary issue and hence, the same cannot be decided as a preliminary issue.
17.It is further held that the question of court fee must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. But this Court in the judgment reported in 2002(2) CTC 513, in the case of V.R.Gopalakrishnan vs. Andiammal, distinguished the petition under Order 14 Rule 2 and petition filed under section 12 (2) of the Court Fees and Suit Valuation Act in para 14 as follows:- "There appears to be some conflict between the provisions in C.P.C (ie) Order 14 Rule 2 when read with Section 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act with reference to deciding the pecuniary jurisdiction of the Court. Suppose in a given case, the defendant comes forward with an application requesting the court to decide an issue relating to valuation of the suit property or the payment of court fee as a preliminary issue, the Court may applying the provision Order 14, Rule 2, decide to consider along with other issues and not as a preliminary issue. Then the defendant may file an application to consider the issue as per the provisions of Section 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act, then the court will have no discretion and it has to consider the same. The Tamil Nadu Court Fees and Suits Valuation Act is a substantial law while C.P.C. is a procedural law. The substantial law will prevail over the procedural code and consequently, it follows whenever the defendant files an application, requesting the court to decide the issue of valuation of the suit property or the payment of court fee and all questions arising on such pleas as a preliminary issue, the court has to necessarily consider as per the provisions of Section 12 (2) of the Tamil Nadu Court Fees and Suits Valuation Act. Not in all cases where the defendant has disputed in the written statement, the valuation of the suit property or contended that the suit has not been properly valued, the court has to consider it as a preliminary issue. Only where the defendant makes an application, the court is bound to consider under Section 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act."
18.The learned Judge also summarised the legal position in para 19 of the following Judgment:-
"a. As per the amended Order 14, Rule 2, though a case may be capable of being disposed of on a preliminary issue, the court is given a mandate to try all the issues together.
b.However, an exception is made to this mandate by giving discretion to try an issue as to jurisdiction or a statutory bar to the suit as a preliminary issue.
c.In a given case, the court may decline to try even an issue relating to its jurisdiction or to a statutory bar to the suit as a preliminary issue if it considers expedient to do so.
d.The discretion vested with the court has to be exercised judiciously.
e.The parties will be at liberty to adduce such evidence as they may desire only in relation to that issue.
f.Ordinarily, no revision under Section 151, CPC will be entertained against the order of the trial court once such a discretion is used. But however, it is not an absolute one and in exceptional case, the court can entertain Revision and interfere.
g.When the defendant comes forward with an application disputing the valuation of the property or contends that the suit has not been properly valued, the court has to consider the same. Such consideration shall be as per Section 12(2) of the Tamil Nadu Courts and Suit Valuation Act and the court cannot choose to decide that issue along with other issues. This provision viz., section 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act 1955, which is a substantial law shall prevail over Order 14, Rule 2, CPC which is a procedural law.
h.In the course of considering a preliminary issue, the court is empowered to record such evidence as parties desired to let in only in relation to that issue/aspect.
i.The allegations in the plaint have to be taken as a basis and the claim must be read as a whole. The accepted Rule is that substance alone matters and not the form.
j.When a suit is filed seeking a decree to set aside the sale, Court Fee has to be paid on the market value of the property on the date of filing of the suit.
k.But however, if a plea is raised that the signature was obtained in a blank paper or that some misrepresentation was made and thereby fraud was prayed on the executor, then court fee need not be paid for setting aside the same."
19.As per the said judgment, when an application is filed disputing the valuation of the property, the court has to consider the same and the same shall be considered as per the section 12(2) of the Tamil Nadu Court Fees and Suit Valuation Act and the learned Judge has held the provision of section 12(2) of the Tamil Nadu Court Fees and Suit Valuation Act is a substantial law, which will prevail over Order 14, Rule 2 CPC, which is a procedural law. Nevertheless, having regard to the facts of that case, the learned Judge dismissed the revision petition filed by the tenant for deciding the matter as a preliminary issue.
20.The Honourable Supreme Court also dealt with section 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act 1955, in the judgment reported in AIR 1961 SC 1299, in the case of Rathnavarma Raja vs. Smt. Vimala and held that section 12(2) enables the defendant to raise a contention as to the proper court fee payable on a plaint and to assist the court in arriving at a just decision in that question.(Italics supplied by me)
21.It is further held that under section 19 of the Court Fees Act, the court may also hold an enquiry and issue a commission to any person to make local or other investigation to find out whether the subject matter of the suit or other proceedings has been properly valued, but held that when the court has in its discretion dismissed the application filed by the defendant, the defendant cannot invoke the revisional jurisdiction under section 115 CPC so as to obstruct the progress of the suit and finally held that the High Court grievously erred in entertaining revision applications on questions of court fee at the instance of the defendant, when no question of jurisdiction was involved. (Italics supplied by me)
22.In that case, before the Honourable Supreme Court a suit was filed by valuating the suit at Rs.21,000/- and court fee Rs.275/- was paid, the plaint valued the property at 30 times of the assessment and separately valued the building and court fee Rs.15/- was paid. When the question was raised regarding the valuation of the property, an Advocate Commissioner was appointed and as per the Commissioner's report, the plaintiff paid the additional court fee and aggrieved by the valuation of the property by the court, both the plaintiff and the defendant filed revision before the High Court and the Honourable High Court confirmed the order passed by the learned Sub Judge and that order was challenged before the Honourable Supreme Court.
23.As seen from the judgment of the Honourable Supreme Court reported in AIR 1961 SC 1299, in the case of Sri Rathanavarmaraji vs. Smt.Vimala, the Honourable Supreme Court held that under section 115 of CPC, revision ought not to have been entertained by the High Court and when the question of jurisdiction was not involved the revisional jurisdiction should not be invoked. In my opinion, it is on the premise that in those days, the Sub Court was having unlimited pecuniary jurisdiction and therefore, when a suit was filed before the Sub Court and it was not properly valued, the Court will retain its jurisdiction even when the plaint is properly valued as per the contention of the defendant and only excess court fee has to be recovered and in that context, the Honourable Supreme Court has held that when there is no question of jurisdiction involved, entertaining of revision application on the basis of court fee is not permissible.
24.Further, in the above case, the Honourable Supreme Court has also observed that section 12(2) enables the defendant to raise a dispute regarding proper court fee payable on the plaint and under section 19, Commissioner can be appointed to properly value the property. Therefore, in the light of the observation of the Honourable Supreme Court and the law laid down by this Court in the judgment reported 2002(2) CTC 513, in the case of V.R.Gopalakrishnan vs. Andiammal, referred to above, I am of the opinion that when a question of jurisdiction is raised by filing an application under section 12(2) of the Tamil Nadu Court Fees and Suit Valuation Act by stating that the property was not properly valued and if properly valued, the court will have no jurisdiction, the same must be tried as a preliminary issue and court has to direct the parties to lead in evidence in that aspect, otherwise there is no purpose in enacting section 12(2) of the Tamil Nadu Court Fees and Suit Valuation Act.
25.Therefore, I am of the considered view that when a dispute was raised by filing application under section 12(2) of the Tamil Nadu Court Fees and Suit Valuation Act on the pecuniary jurisdiction of this court on the ground that the suit was not properly valued, the same has to be tried as a preliminary issue and the court has to follow the procedure under section 12(2) of the Tamil Nadu Court Fees and Suit Valuation Act.
26.Hence, the order of the lower Court is set aside and the lower Court is directed to try the same as preliminary issue. Accordingly, this civil revision petition is allowed. Consequently, connected Miscellaneous Petition is closed. No Costs.
er To The I Additional District Munsif, Kuzhithurai.