Madras High Court
Smt.Chithra Ramalingam vs G.Sridharane on 27 April, 2010
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27-04-2010 CORAM THE HON'BLE MR.JUSTICE M.JAICHANDREN C.R.P.(PD) No.3655 of 2009 and M.P.No.1 of 2009 Smt.Chithra Ramalingam .. Petitioner. Versus 1.G.Sridharane 2.Nirmala Premkumar 3.Amirtha Vijayakumar 4.G.Kannan Power Agent of the first defendnat G.Sridharan) 5.R.Kumaran 6.R.Manimozhi 7.S.Mullai 8.R.Rani Ammal 9.N.Ganapathy 10.S.Muthuraman 11.A.Raja 12.N.Chandrakumar 13.K.Arunasalam 14.G.Munisamy 15.D.Rani 16.J.Ilangovan 17.K.Thamizmani 18.R.Baskaran 19.K.Dharanivel 20.M.Rajalatchumi 21.P.Varadhan 22.V.Devaki 23.N.Vittoba 24.G.Kayalvizhi 25.M.Anandaraj 26.A.Geetha Anandaraj 27.M.Aneboucarassy Power Agent of D25 to D26) 28.S.Geetha 29.A.Sriramulu 30.P.S.Ranganathan 31.A.Lavanya @ Mahalakshmi 32.S.Santhi 33.S.Senthilkumaran 34.The Union of India represented by the Chief Secretary, Union Territory of Puducherry, Government of Puducherry, Office of the Chief Secretariat, Goubert Avenue, Puducherry. 35. The Collector, Government of Puducherry, Puducherry. 36.The District Registrar, Registration Department, Government of Puducherry, Puducherry. 37.The Tahsildar Puducherry Taluk Office, Revenue Department, Government of Puducherry, Puducherry. 38.The Director Directorate of Survey and Land Records, Revenue Department, Government of Puducherry, Puducherry. 39. The Tahsildar (Settlement) Directorate of Survey and Land Records, Revenue Department, Government of Puducherry, Puducherry. 40.The Superintending Engieneer, Public Works Department, Government of Puducherry, Puducherry. 41.The Commissioner, Ariyankuppam Commune Panchayat, Local Administration Department, Government of Puducherry, Ariankuppam, Puducherry 605 007. .. Respondents. PRAYER: Petition filed under Article 227 of the Constitution of India, to call for the records of the Principal District Judge, Puducherry, dated 7.11.2009, made in unnumbered O.S.No._____ of 2009, between Smt.Chithra Ramalinga, Rep. By the Power Agent/husband, Sri.L.Ramalingam Vs. Sri.G.Sridharane and others and direct the Court below to number the plaint without insisting the plaintiff to affix additional court fee. For Petitioner : Mr.V.Lakshmi Narayanan for M/s. Shah & Shah For Respondents: Mr.V.R.Shanmuganathan (R1) Ms.N.Mala (Government Pleader) (Puducherry) (R34 to R41) O R D E R
This civil revision petition has been filed against the order, dated 7.11.2009, made in the un-numbered suit, in O.S.No.______ of 2009, on the file of the Principal District Judge, Puducherry, between Chithra Ramalingam, represented by her power agent/husband, L.Ramalingam and G.Sridharane and others.
2. The petitioner in the present civil revision petition had filed a suit for partition and for other reliefs, relating to the joint family property said to be belonging to her and the respondents 1 to 3, who are said to be her siblings. The learned Principal District Judge, Puducherry, had passed a docket order, dated 7.11.2009, in the un-numbered suit, in O.S.SR.No.14669 of 2009. The learned Judge had stated that the plaintiff had filed the suit for partition and for getting separate possession of her 1/4th share in the suit properties and for certain other reliefs. Some of the suit properties had been alienated by the first defendant in the suit, through his power of attorney. The alienees have also been added, as defendants in the suit. The plaintiff had valued the relief for partition, under Section 37(2) of the Pondicherry Court Fees and Suits valuation Act, 1972, alleging that she is in joint possession of the suit properties. Since the relief of partition is prayed for by the plaintiff, regarding the alienated properties, as well as the unalienated properties, which are said to be belonging to the family of the plaintiff, the plaint filed in the un-numbered suit was directed to be returned for the plaint to be valued, in respect of the alienated items of the properties in question, under Section 37(1) of the Pondicherry Court Fees and Suits valuation Act, 1972. The learned Judge had further directed the plaintiff to pay the deficit Court fees.
3. The main question that arose for the consideration of the learned Judge was that when some of the suit properties had been alienated to third party purchasers, and when the purchasers are in possession of the properties in question, and when they are added as parties to the suit, as defendants, whether the plaintiff can plead joint possession regarding the alienated properties and pay Court fees, under Section 37(2) of the Pondicherry Court Fees and Suits valuation Act, 1972. After referring to the various decisions cited before him, the learned Judge had held that when some of the properties have been alienated to third parties, who are entitled to the possession of the properties, as per law, the plaintiff, who files the suit for partition, stating that those transactions would not be binding on her, cannot be allowed to contend that she is in joint, physical or constructive possession of the alienated items also and that she would be entitled to pay court fees, only under Section 37(2) of the Pondicherry Court Fees and Suits valuation Act, 1972, and regarding the alienated properties she has to value the Court Fees, under Section 37(1) of the the Pondicherry Court Fees and Suits valuation Act, 1972.
4. The plaintiff in the suit, who is the petitioner in the present civil revision petition, had been directed to pay the ad valorem Court Fees, under Section 37(1) of the the Pondicherry Court Fees and Suits valuation Act, 1972, for the alienated properties, which have been described in schedules `M to `AL (26 items). The learned Judge had granted time, till 24.11.2009, to the petitioner, for the payment of the deficit Court fee, under Section 37(1) of the the Pondicherry Court Fees and Suits valuation Act, 1972, for the alienated items. Against the order passed by the learned Principal District Judge, Puducherry, on 7.11.2009, the petitioner has filed the present civil revision petition before this Court, under Article 227 of the Constitution of India.
5. It has been stated that the order of the Court below is contrary to the settled principles of law and the principles of natural justice. The Court below had made certain assumptions, which are not permissible under the law and the facts and circumstances of the case. The order passed by the Court below directing the plaintiff to affix ad valorem Court fee, under Section 37(1) of the the Pondicherry Court Fees and Suits valuation Act, 1972, is arbitrary and illegal. The learned Judge ought to have appreciated the fact that the petitioner is not a party to the alienation of the properties in question and that, she is not bound by the sale, effected by the co-sharers. The Court below has failed to consider the position that it is a purchaser of the joint properties, who should seek for partition, if they deem it fit to do so. The learned Judge ought to have known that when the petitioner, who is the plaintiff in the suit, is not a party to the transactions, neither Section 40, nor Section 37(1) of the the Pondicherry Court Fees and Suits valuation Act, 1972, would apply. The learned Judge ought to have noted that the co-sharers of the properties in question are not capable of conveying or alienating the properties and that there is a presumption that the co-owners are in possession of the properties. The Court below ought to have taken the plaint on file and registered the same, with the Court fees already affixed on it, without insisting or affixing additional Court fees.
6. The learned counsel appearing on behalf of the petitioner had relied on the following decisions in support of his contentions:
6.1) In Paruchuru Thirumala Satyanarayanacharyulu and another Vs. Vannava Ramalingam and Ors (AIR 1952 Madras 86), wherein it had been held that a party, who is aggrieved by an order calling for an additional court fee, should, at once, file a revision before this Court and get a stay, if he does not want to pay the additional court fee. If he waits till the time granted for paying the additional court fee expires and the plaint is rejected, he cannot afterwards, file a revision petition, as his remedy then is only an appeal.
6.2) In Thankamma V. Unniamma Antharjanam (1964 KLT 529), wherein it had been held as follows:
"There can be no controversy that for purposes of court fee the averments in the plaint will have to be prima facie accepted. A denial or other controversy raised in the written statement by the defendants has absolutely no bearing on the question of considering the court fee that is payable on the plaint; and for that purpose the Court will have exclusively to confine its attention to the averments made in the plaint itself. The truth or otherwise of the allegations in the plaint will not arise at the time of deciding the question of the correct court fee to be paid."
6.3) In Ouseph Chacko V.Ayissumma and others (1966 KLT 1061), it had been held as follows:
"For the purpose of finding out whether a plaint has been properly valued or proper court fee has been paid we are only concerned with the allegations in the plaint and the substance of the suit. It has been definitely alleged in the plaint that in respect of the co-ownership property belonging to the plaintiff and the first defendant, the plaintiff is in joint possession along with the first defendant. At this stage of the consideration of the question regarding the proper valuation to be adopted by the plaintiff, it is not necessary to consider whether that statement in the plaint is true or not. It is also stated by the plaintiff that though he is in joint possession of the property along with the first defendant, the first defendant is appropriating the income of the entire property to himself. This does not mean that the plaintiff admits exclusive possession of the property with the first defendant. Therefore, the valuation under Section 37(2) is correct. Section 37(1) can apply only if the case pleaded is one of exclusion of the plaintiff from possession. Exclusion from enjoyment of receipt of income is totally different from exclusion from possession. Mere appropriation of the profits of the property or even exclusive use of the property by the co-sharer, does not amount in law to "exclusion" of other co-sharers from possession."
6.4) In Lakshmi Ammal V. Madhavakrishnan (AIR 1978 SC 1607), it had been held as follows:
"2. It is unfortunate that long years have been spent by the courts below on a combat between two parties on the question of court-fee, leaving the real issues to be fought between them to come up leisurely. Two things have to be made clear. Courts should be anxious to grapple with the real issues and not spend their energies on peripheral ones. Secondly, court-fee, if it seriously restricts the rights of a person to seek him remedies in Courts of justice, should be strictly construed. After all access to justice is the basis of the legal system. In that view, where there is a doubt, reasonable, of course, the benefit must go to him who says that the lesser court fee alone be paid.
3. In this particular case there is hardly any difficulty in holding that the plaintiff in para 14 of the plaint has clearly alleged that she is in joint possession and is seeking partition and separate possession of her half-share in the suit properties as heir of deceased Paramayee. Obviously, the court-fee that is payable is as she has claimed, namely, under Section 37(2) which corresponds to Article 17(B) of the Central Act, which is the predecessor legislation on the subject. We allow the appeal and send the case back to the trial Court and direct that Court to proceed with the suit expeditiously. We make it clear that our decision on the question of court-fee does not have any implications on the merits, including the validity or otherwise of the Will. No costs."
6.5) In Neelavathi V. N.Natarajan (AIR 1980 SC 691), it has been held as follows:
It is settled law that the question of court fee must be considered in the light of the allegation 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. All the material allegations contained in the plaint should be construed and taken as a whole.
The Court-fee is payable under Section 37 (1) of the Tamil Nadu Court-fees and suits Valuation Act if the plaintiff is "excluded" from possession of the property. The general principle of law is that in the case of co-owners, the possession of one is in law possession of all, unless ouster or exclusion is proved. To continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession. Before some co-owners for a partition suit as plaintiffs could be called upon to pay court fee under Section 37(1) of the Act on the ground that they had been excluded from possession, it is necessary, that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been "excluded" from joint possession to which they are entitled to in law. The averments in the plaint that the plaintiff could not remain in joint possession as he was not given any income from the joint family property would not amount to his exclusion from possession."
6.6) In S.K.Kumaraswami V. S.R.Somasundaram (1995(1) MLJ 322), it has been held as follows:
It has been held that the question of court-fees must be considered in the light of the allegations made in the plaint and the decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on the merits. Courts have always taken care to point out repeatedly that mere astuteness in drafting the plaint will not be allowed to stand in the way of the court looking at the substance of the relief asked for and the Court should look into the allegations in the plaint to see what is the substantive relief that is asked for. 6.7) In Minor Subha Vs. Ramu (2005(5) CTC 444), this Court had held as follows:
"Question of Court fee to be construed in the light of the averments in the plaint, uninfluenced by pleas in written statement or final decision of the suit on merits regarding factum of possession. When plaintiffs allege joint possession and invoke Section 37(2), prima facie same is to be accepted and it is always open to Court to frame necessary issue and decide it."
7. The learned counsel appearing on behalf of the first respondent had submitted that the order of the learned Principal District Judge, Puducherry, dated 7.11.2009, which is challenged in the present civil revision petition cannot be held to be incorrect or illegal. It has been stated that, admittedly, the petitioner is out of possession of the suit properties, as the properties in question had been sold to a number of purchasers and they are in exclusive possession and enjoyment of the said properties. While so, it is not open to the petitioner, as the plaintiff in the suit for partition, to claim that she is in joint possession of the properties and to value the suit, under Section 37(2) of the the Pondicherry Court Fees and Suits valuation Act, 1972. When the petitioner is seeking the relief of declaration to declare the sale deeds made in favour of the third parties, who are defendants in the suit, as null and void, the petitioner cannot be permitted to value the suit, under Section 37(2) of the the Pondicherry Court Fees and Suits valuation Act, 1972. Therefore, the payment of a nominal Court fee by the petitioner while filing the suit, as if the petitioner, is in joint possession of the properties, which had already been alienated, is not acceptable.
8. It has also been stated that the order of the learned Judge is a well reasoned order and it is in consonance with the well settled position of law, and it is supported by the various decisions of the Courts of law. It has also been stated that the petitioner, by getting an order of injunction in the civil revision petition, had achieved what he could not have achieved in the suit, after it would have been numbered. It has also been stated that unless the petitioner succeeds in getting the sale deeds made in favour of third party purchasers, who have been arrayed, as defendants in the suit, as null and void, she cannot prevent such purchasers, who have purchased the properties in a bona fide manner, from possessing and enjoying the properties concerned. Further, any encumbrance or alienation during the pendency of the suit would be, without doubt, subject to the result of the suit.
9. The learned Government Pleader appearing on behalf the respondents 34 to 41, had submitted that the real relief sought for by the petitioner is to set aside the alienation of the properties concerned, made in favour of third party purchasers, who are parties to the suit, as defendants. Therefore, the petitioner is to pay the Court fee, under Section 37(2) of the the Pondicherry Court Fees and Suits valuation Act, 1972. It is for the petitioner to prove that she is in joint possession of the alienated properties. By merely making a claim that she is in joint possession of the alienated properties, she cannot be allowed to pay nominal Court fees. She had also submitted that the issue of payment of proper Court fees cannot be tried as an issue by the trial Court, along with the other issues, as per Section 11(1) of the the Pondicherry Court Fees and Suits valuation Act, 1972. Section 11(1) of the the Pondicherry Court Fees and Suits valuation Act, 1972, reads as follows:
"Decision as to proper fee in other Courts.---(1) In every suit instituted in any Court other than the High Court, the Court shall, before ordering the plaint to be registered, decide on the materials and allegations contained in the plaint and on the materials contained in the statement, if any, filed under Section 10, the proper fee payable thereon, the decision being however subject to review, further review and correction in the manne hereinafter specified in this Section."
Therefore, it is clear that the real relief sought for by the petitioner is to set aside the sale deeds in favour of the purchasers, who are shown as defendants in the suit. It is also seen that the sale deeds contains the schedule of properties `M to `AL, which are the alienated items. From the pleadings of the petitioner, in the plaint filed in the suit, it cannot be inferred that the petitioner is in joint possession of the properties, along with the purchasers of the properties. When the substance and the form of the plaint is considered, it is clear that the petitioner has sought for the cancellation of the sale deeds and for repossession of the properties from its purchasers. Thus, the question of the substantial relief sought for by the petitioner would have to be looked into. When the petitioner has filed the suit for partition claiming a share in the properties in question and when she has impleaded the alienees, the reliefs sought for by her would only amount to a final adjudication, in respect of the alienation of the properties. The factum of joint possession has to be proved by letting in evidence and therefore, it cannot be assumed, as stated by the petitioner.
10) The learned counsels appearing on behalf of the respondents had relied on the following decisions in support of her contentions 10.1) In Lakshmi Ammal in re (1925 MLJ Reports 608) the Court, while dealing with Section 12(1) of the Court fees Act, had stated that the wording of the Section offers no difficulty, since, in any case, the trying Court must decide the question of Court-fee, implicitly or explicitly, before it can proceed to try the suit. If the Court is not satisfied that the plaint is properly stamped it must dismiss the suit unless the proper stamp-fee is paid.
10.2) In Karia Nachi Bivi V. Allapichai and others (AIR 1937 Madras 402), it had been held as follows:
"When a person sues for possession of properties some in possession of alienor and some in that of alienee, he must pay court-fee under S.7, Cl.(5), Court-fees Act, in respect of the property in possession of the alienee. It cannot be contended that he should not be called upon in the first instance to pay court-fee under Cl.(5), S.7 in respect of that property on the ground that it may be possible finally to allow the alienees to remain in possession of those properties by allotting them the share of the alienor. The proper basis for the court-fee is that the plaintiff asks for possession from the alienee."
10.3) In C.R.Ramaswami Ayyangar V. C.S.Rangachariar and others (AIR 1940 Madras 113), it had been held as follows:
"Section 7(v) cannot be deemed to apply to a partition suit where the plaintiff is in joint possession. A joint owner who is in possession does not need to sue for possession. He has possession and the fact that his possession is shared by others does not affect the position. S.7(v) applies only where the plaintiff is seeking relief in respect of possession of immovable property when he is out of possession.
The language of S.7(iv) (b) is incompatible with a claim for partition when the plaintiff is in joint possession with other members of his family. A suit to enforce a right to share in any property on the ground that it is joint family property is a suit of a different nature from a suit to enforce the right to a share. Where the claim is to share, it implies that the plaintiff is not in possession; where as a suit to obtain possession of a share is compatible with the plaintiff being in joint possession of the whole."
10.4) In Nagendram V. Appayya (1947 (1) MLJ 15), it had been held as follows:
"The mere fact that during the pendency of a suit for partition by a coparcener the plaintiff transfers his rights to a stranger who is then added as additional plaintiff would not entail additional court-fee on the ground that the alienee was not a person in joint possession of the suit properties along with the defendants. But when the original plaintiff decides not to prosecute the suit as originally laid by him and finally allows himself to be transposed as a defendant, the nature of the suit becomes altered in a material degree. It ceases to be a suit for partition by one coparcener against the other coparceners. It becomes a suit by a person claiming to be an alienee from a coparcener for partition against the other members of the family. The alienee could in in no sense be described as a person in joint possession actually or even constructively along with the other members of the family. The proper course on transmission of the original plaintiff as a defendant is to call upon the transferee plaintiff to pay ad valorem court-fee on the share of the properties which he was claiming.
Where what the trial court did instead was to dismiss the suit on the merits and to direct at the end of the judgment the transferee to pay additional court-fee within one month from the date of judgment and in default that the plaint would stand rejected on that ground, held in an appeal by the transferee plaintiff: Section 12, sub-section (ii) of the Court Fees Act confers on the appellate court ample power to set right any mistake in procedure. The appellant can be ordered to pay the proper court-fee which he ought to have paid as calculated under Section 7 clause (v) of the Court Fees Act both on the plaint and memorandum of appeal and in can be directed that in default the appeal as well as the plaint should be rejected as not bearing the proper court-fee as far as the appellant was concerned."
10.5) In Gopalakrishnan V.R. V. Andiammal (2002(2) CTC 513), it had been held as follows:
"13. There is also a provision in the Tamil Nadu Court Fees and Suits Valuation Act, 1955, viz., Section-12 which lays down that the Court shall decide on the materials and allegations available in the plaint, the proper court fee payable thereon. Section 12(2) of the Act reads thus:-
"Any defendant may, by his written statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim but, subject to the next succeeding sub-section, not later, plead that the subject matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. If the court decides that the subject matter of the suit has not been properly valued or that the fee paid is not sufficient, the Court shall fix a date before which the plaint shall be amended in accordance with the Court's decision and the deficit fee shall be paid. If the plaint be not amended or if the deficit fee be not paid within the time allowed, the plaint shall be rejected and the Court shall pass such order as it deems just regarding costs of the suit."
According to the above provision, all questions arising as such pleas shall be heard and hence no discretion is vested with the Court. If on the basis of the materials and allegations contained in the plaint, the Court comes to the conclusion that the suit has not been properly valued or that the fee paid is not sufficient, the court can call upon the plaintiff to amend the plaint and also pay the deficit court fee. If the plaintiff fails to do that, the Court shall reject the plaint and pass appropriate orders. Once the Court decides that the subject matter of the suit has not been properly valued or that the court fee paid is not sufficient, the Court has no option except to fix a date and call upon the plaintiff to comply the defect viz., by amending the plaint and also by paying necessary court fee. It has to be noticed that in this Section, the word "shall" has been employed as against the word "may" that occurs in Order 14, Rule 2, CPC. Of course, it is the settled legal position that the question of valuation 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 and further all the material allegations contained in the plaint should be construed and taken as a whole. It is the substance and not the form matters."
...........
19. To sum up, the legal position is:
(a) A 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 declined 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 cases, 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 Court Fees and Suits 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 desire 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 played on the executor, then Court fee need not be paid for setting aside the same."
11. In view of the submissions made by the learned counsels appearing on behalf of the parties concerned and on a perusal of the records available, and in view of the decisions cited above this Court is of the considered view that the issue relating to the payment of proper Court fee could be decided by the trial Court, at the stage of the trial in the suit.
12. The main question that had arisen for the consideration of the learned Principal District Judge, Puducherry, in the un-numbered suit filed by the petitioner was that when some of the suit properties, said to be under joint ownership of the petitioner, had been alienated to third party purchasers, and when the purchasers are in possession of the properties in question, and when they are added as parties to the suit, as defendants, whether the plaintiff can plead joint possession in respect of the said properties and pay the Court fees, under Section 37(2) of the Pondicherry Court Fees and Suits Valuation Act, 1972.
13. After a detailed discussion, the learned Judge had held that the petitioner cannot be allowed to contend that she is in joint possession of the alienated items of the properties and therefore, she should pay the Court fees, as per Section 37(1) of the Act. Thus, the petitioner had been directed to pay the ad valorem court fees, under Section 37(1) of the Pondicherry Court Fees and Suits Valuation Act, 1972, for the alienated properties, which had been described in schedules `M to `AL (26 items). The learned Judge had granted time to the petitioner to pay the appropriate Court fees, as directed by the Court, on or before 24.11.2009.
14. From the decisions cited above and on a reading of Section 37 of the Pondicherry Court Fees and Suits Valuation Act, 1972, it could be inferred that the plaintiff could be directed to pay the Court fees, in accordance with the provisions of the said Section. However, in a suit for partition, as in the present case, when the plaintiff in the suit claims to be in joint possession of certain alienated properties, the trial Court may decide the issue, at the outset, either as a preliminary issue, or at the time of trying the other issues, during the proceedings in the suit. Even though the learned counsel appearing on behalf of the respondents had insisted that the trial Court is obliged to decide the issue of payment of Court fees at the first instance, even before the numbering the suit, this Court is of the view that, in the facts and circumstances of the present case, the said issue could be decided, along with the other issues, at the stage of the trial.
15. In the present case, the petitioner has categorically stated in the plaint filed by her in the suit that the joint family properties, in which she is entitled to her share, had been illegally disposed of and therefore, such acts are considered to be non est in the eye of law. In such circumstances, the petitioner is deemed to be in physical or constructive joint possession of the illegally alienated properties. When such factual issues are to be decided based on evidence, both oral, as well as documentary, it would only be appropriate for the trial Court to frame an appropriate issue and to decide the same during the trial in the suit. The decision of the learned Principal District Judge, holding that the petitioner is liable to pay the deficit Court fees, under Section 37(1) of the Act cannot be held to be right and proper, considering the facts and circumstances of the case.
16. In such circumstances, the order, dated 7.11.2009, made in the un-numbered suit in O.S.No.______2009, is set aside and the learned Principal District Judge, Puducherry, is directed to cause the numbering of the suit filed by the petitioner, based on the Court fee already paid by her. However, it would be open to the learned Principal District Judge to frame a specific issue relating to the payment of proper court fees, as per Section 37 of the Pondicherry Court Fees and Suits Valuation Act, 1972, and to try the same, along with the other issues, at the time of the trial in the suit. However, it is made clear that the observations made on the merits of the matter, in the order, dated 7.11.2009, shall not influence the trial Court in deciding the issue relating to the payment of proper Court fees, by the petitioner, who is the plaintiff in the suit. If the trial Court comes to the conclusion, finally, that the Court fees paid by the petitioner is not the proper Court fees, as per the provisions of the Pondicherry Court Fees and Suits Valuation Act, 1972, it would be open to the trial Court to direct the payment of the appropriate court fees, as per the relevant provisions of the Act. The Civil Revision Petition is ordered accordingly. No costs. Consequently, connected miscellaneous petition is closed.
Index:Yes/No 27-04-2010 Internet:Yes/No csh To
1. The Chief Secretary, The Union of India, Union Territory of Puducherry, Government of Puducherry, Office of the Chief Secretariat, Goubert Avenue, Puducherry.
2. The Collector, Government of Puducherry, Puducherry.
3.The District Registrar, Registration Department, Government of Puducherry, Puducherry.
4.The Tahsildar Puducherry Taluk Office, Revenue Department, Government of Puducherry, Puducherry.
5.The Director, Directorate of Survey and Land Records, Revenue Department, Government of Puducherry, Puducherry.
6. The Tahsildar (Settlement) Directorate of Survey and Land Records, Revenue Department, Government of Puducherry, Puducherry.
7.The Superintending Engieneer, Public Works Department, Government of Puducherry, Puducherry.
8.The Commissioner, Ariyankuppam Commune Panchayat, Local Administration Department, Government of Puducherry, Ariankuppam, Puducherry 605 007.
9. The Principal District Judge, Puducherry.
M.JAICHANDREN J.
csh C.R.P.(PD) No.3655 of 2009 27-04-2010