Madras High Court
Solaiammal (Died) And Anr. vs Rajarathinam And Five Ors. on 10 October, 2003
Equivalent citations: 2003(4)CTC268, (2003)3MLJ632
Author: R. Banumathi
Bench: R. Banumathi
ORDER
1. Plaintiff is the revision petitioner. This revision is directed against the order of the learned District Munsif, Thuraiyur in I.A.No. 552 of 2000 in O.S.No. 285 of 1997 (dated 10.11.2000) holding that the District Munsif Court has no pecuniary jurisdiction to try the suit O.S.No. 285 of 1997.
2. This Revision is based on the following-facts:
Plaintiff is the wife of deceased Chinnapoovan, Chinnapoovan had his elder brother by name Periyapoovan. D1 to D3 are the sons of Periyapoovan. Suit property is comprised in two schedules-A Schedule refers to three items of landed property and house property. B Schedule refers to Bank Deposits in Nationalised Banks-shown as defendants 4 to 6. Chinnapoovan died on 13.9.1997. Case of Revision Petitioner/Plaintiff is that D1 to D3 have no interest or right in the suit property. On 13.9.1997 under the pretext of taking Chinnapoovan to Hospital, D1 to D3 had taken Chinnapoovan to Thuraiyur and fraudulently included their names as nominees for the Fixed Deposit amount. After getting Nomination to the Fixed Deposits, D1 to D3 are trying to withdraw the amount as Nominees of Chinnapoovan. They are also threatening the plaintiff who is a helpless widow. Hence the plaintiff has filed the suit for,
(i) declaration that she is the Legal Heir of Chinnapoovan;
(ii) permanent injunction restraining the defendants 1 to 3 from interfering with possession and enjoyment of the plaintiff in her capacity as the Legal Heir of Chinnapoovan of plaint A Schedule immovable property;
(iii) permanent injunction restraining the defendants 1 to 3 from withdrawing the Fixed Deposits from the Nationalised Banks-D4 to D6 and also to restrain D4 to D6 to disburse the amount to D1 to D3.
3. Defendants 1 to 3 have filed written statement contending that the suit A Schedule Property are the joint family properties. According to them, Items 1 and 2 were purchased from out of the joint family income. All three items of A Schedule Properties are Joint Hindu Family Properties. Chinnapoovan died on 13.9.1997. Even prior to his death, in sound disposing state of mind, Chinnapoovan had executed a Will dated 29.4.1996 (unregistered) bequeathing his properties to D1 to D3. D1 to D3 are the Testamentary Heirs and the plaintiff has no right or interest in the suit properties. Chinnapoovan deposited the amount in the Banks in Fixed Deposits which were not renewed for long time. At the time of renewal of the Fixed Deposits, Chinnapoovan nominated either of D1 to D3 as Nominees for the Deposits. When defendants 1 to 3 have taken Chinnapoovan to the Banks-Union Bank of India, State Bank of India, while he was in hale and healthy condition and in good health, nominated the defendants 1 to 3 as Nominees for the Fixed Deposits. In fact at the time of renewal of the deposits, the defendants 1 to 3 being nominated for the deposits, plaintiff also accompanied Chinnapoovan and the defendants. Thus the defendants were impleaded as Nominees for the Fixed Deposits to the knowledge of the plaintiff. While so, it is not open to the plaintiff to claim as if the defendants 1 to 3 were included as nominees without the knowledge of the plaintiff.
4. Application No. 552/2000: While the suit was pending for trial, Respondents 1 to 3/Defendants I to 3 have filed Application No. 552/2000 alleging that the A Schedule landed properties are worth Rs. 1,50,000 and the houses thereon are worth more than Rs. 50,000. The Bank Deposits in the Nationalised Banks are more than Rupees Two Lakhs. Defendants 1 to 3 have filed the application contending that District Munsif Court has no Pecuniary Jurisdiction. According to them the suit is filed for Declaration and Permanent Injunction. The suit is notionally valued under Section 25(d) and 27(c) of the Tamil Nadu Court Fees and Suit Valuation Act (in short TNCFSV Act'). Challenging the valuation of suit at Rs. 900 and contending that the suit property is valued more than Rupees Four Lakhs, defendants 1 to 3 have filed this application under Order 14, Rule 2, C.P.C for trying the issue relating to the valuation as Preliminary Issue.
5. Respondent/Plaintiff contested the application on the ground that the application is belated. In the counter statement filed by the plaintiff she has referred to the earlier stand of the defendants 1 to 3 in denying that she is the Legal Heir of Chinnapoovan. In view of that denial the plaintiff was compelled to file Amendment Petition to amend the plaint including the prayer for declaration for declaring her as the Legal Heir of Chinnapoovan. The question relating to the Pecuniary Jurisdiction and the application filed under Order 14, Rule 2, C.P.C ought to have been filed at the earliest point of time. Having not raised the dispute regarding the Pecuniary Jurisdiction in the written statement, it is not open to the defendants 1 to 3 to raise that point at a later point. There is no necessity to determine the issue of Court fee as the Preliminary Issue. Further when the suit relief is incapable of valuation, no valid objection could be raised for notionally valuing the suit for Rs. 400 under Section 27(c) for the relief of permanent injunction.
6. The learned District Munsif found that though the suit is valued under Section 27(c) and 25(d) the suit is not one simpliciter for the relief of permanent injunction which is incapable of valuation. The trial Court pointed out that the B Schedule-FDR is more than Rs. 1,50,000 and that the plaintiff has filed the suit for declaring herself as the Legal Heir of Chinnapoovan and for consequential permanent injunction restraining the defendants 1 to 3 from withdrawing the amount. In the view of the trial Court, the suit ought to have been valued for the value of the Fixed Deposits which would certainly exceed Rs. 30,.000 and that District Munsif Court has no Pecuniary Jurisdiction to try the suit.
7. Aggrieved over the same, Revision Petitioner/Plaintiff has preferred this revision.
8. Assailing the findings of the trial Court, the learned counsel for the Revision Petitioner/Plaintiff has submitted that when the prayer is only for the limited purpose of restraining the defendants from withdrawing the amount the suit is properly valued under Section 25(d) and 27(c) which was not properly appreciated by the trial Court. Submitting that the Court is bound to accept the plaint averments and the valuation as correct/ it is contended that when no declaratory relief is sought for the payment of Court fee on the market value of the properties does not arise. In support of his contention he has placed reliance on .
9. Submitting that the Court shall not be carried away by the form in which the plaint is drafted but the Court is to go into the substance of the averments to ascertain the basis of the relief, the learned counsel for the Respondents/Defendants 1 to 3 has pointed out that the suit in substance is one for declaratory relief and consequential injunction. It is the contention of the Respondents/Defendants 1 to 3 that the plaintiff having sought for the relief of declaration deliberately omitted to aver that it is consequential permanent injunction. Submitting that the suit ought to have been valued at its market value particularly on the Face Value of the Fixed Deposits, the learned counsel supported the findings of the District Munsif that the District Munsif Court has no Pecuniary Jurisdiction to try the suit.
10. Upon consideration of the submissions by both parties, plaint averments and the impugned order and other available materials, in my considered view, the following points arise for determination in this revision:
(i) Was not the trial Court right in taking up the question of valuation of the suit and in determining the same as Preliminary Issue?
(ii) When the suit relates to A Schedule immovable properties and the FDR worth more than Rs. 2 Lakhs whether the District Munsif Court has Pecuniary Jurisdiction ?
(iii) Whether the Notional valuation of the suit at Rs. 400 under Section 25(d) and 27(c) of T.N.C.F.S.V Act is correct ?
(iv) Is jurisdiction conferred upon the District Munsif Court merely because the plaintiff has alleged that the relief is 'Incapable of Valuation' and notionally valuing the suit under Section 25(d) and 27(c) ?
11. POINT 1;
Question of Court Fee ... Whether to be determined as Preliminary Issue: DONo. 2002-KO-3130 Order 14, Rule 1, C.P.C makes it obligatory for the Court to pronounce judgment on all issues. But it is subject to the provisions of Sub-rule (2) which gives a discretion to the Court to frame issue of law only if it relates to the jurisdiction of the Court or to a bar to the institution of the suit itself. The intention of the legislature as is apparent from the wording Order 14, Rule 2 is clear that the disposal of the suit should be expedited. It has, therefore, been left to the discretion of the Court to frame an issue of jurisdiction as a preliminary issue if the Court thinks that the suit should be disposed of on that issue.
12. The trial of an issue in the first instance even as to Jurisdiction or Statutory Bar to the institution of the suit being now discretionary. In a case where the Court decides to treat an issue as the Preliminary Issue it has to try it first and not reserve it to be taken up for argument at the time when the suit itself would be tried. In those cases where the question relates to the jurisdiction of the Court or to a bar to the institution of the suit itself for instance where the suit is expressly barred i.e., whether there is a statutory bar like bar under the Co-operative Societies Act, Tamil Nadu Sales Tax Act, Land Encroachment Act and such other Acts, the Court had to dispose of the suit on the finding given on the Preliminary Issue. Thus under Order 14, Rule 2, C.P. C determining the question of jurisdiction or Statutory Bar is discretionary for the Court to decide the issue of law as Preliminary Issue or decide it along with other issues raised in the suit.
13. Prior to Amendment Act, 1976, under the then existing Order 14, Rule 2 categorisation of suits was only between issues of law and the facts. Where it was mandatory for the Court to try the issue of law, in the first instance. After the Amendment Act which is substituted by the present Order 14, Rule 2, determination of law as a Preliminary Issue is purely discretionary. For better understanding of the same, we may usefully refer to the following observation of the Punjab and Haryana High Court in Hardwari Lal v. Ponkar Mal, AIR 1978 P & H 230:
"A comparative reading of the said provision as it existed earlier to the amendment and the one after amendment would clearly indicate that the consideration of an issue and its disposal as preliminary issue has now been made permissible only in limited cases. In the unamended Code, the categorisation was only between issues of law and of fact and it was mandatory for the Court to try the issues of law in the first instance and to postpone the settlement of the issues of fact until after the issues of law had been determined. On the other hand, in the amended provision there is a mandate to the Court that notwithstanding that a case may be disposed of on a preliminary issue, the Court has to pronounce judgment on all the issues. The only exception to this is contained in Sub-rule (2). This sub-rule relaxes the mandate to a limited extent by conferring discretion upon the Court that if it is of opinion that the case or any part thereof may be disposed of on an issue of law only; it may try that issue first. The exercise of this discretion is further limited to the contingency that the issue to be so tried relates to the jurisdiction of the Court or to a bar to the suit created by a law in force."
Thus under the Amended Rules trial of an issue in the first instance even as to jurisdiction or the Statutory Bar to the institution of the suit is only now discretionary.
14. Question relating to Jurisdiction:
Issue as to jurisdiction involving enquiry (i) into the facts is not a question of law only an issue is a mixed question of law and fact. If an issue is a mixed question of law and fact, recording of evidence, it cannot be tried as Preliminary Issue. But the question as to the issue of Jurisdiction is a purely question of law. Whether the question relating to the Jurisdiction is a pure question of law or a mixed question of law and facts depend upon the facts and circumstances of each one case. One such circumstance where it involves pure question of law is whether the question could be disposed of on the available averments and documents in the plaint without recording any further evidence.
15. To make it clear we may refer to instances of Territorial Jurisdiction. For instance in a suit for recovery of money, supply of goods etc., to determine the question of Territorial Jurisdiction may not be a pure question of law. Since the question of Territorial Jurisdiction depends upon the cause of action which is a bundle of facts, which is purely a mixed question of law and facts, in those instances, the question of Territorial Jurisdiction cannot be settled without recording evidence. Therefore most of the cases the question of Territorial Jurisdiction may not be determined as Preliminary Issue under Order 14, Rule 2 unless the circumstances of the case warrants.
16. Per contra, issue relating to Pecuniary Jurisdiction based upon the valuation of the suit which is apparent on the face of the plaint averments and the basis of the plaint. The valuation of the plaint goes to the root of the matter. Whether the valuation of the suit property and the suit claim is apparent in the plaint averments, that question has to be decided first. In the instant case, A Schedule refers to three items of immovable properties the market value of which is stated to be rupees Two Lakhs. Likewise Face Value of B Schedule Bank Deposits are more than Rs. Two Lakhs. Apparently even on the bare averments in the plaint District Munsif Court has no Pecuniary Jurisdiction. The question relating to Pecuniary Jurisdiction could be disposed of as Preliminary Issue on the basis of the averments and valuation in the plaint. In this case for ascertaining the value of the suit property no further recording of evidence is necessary. There is no mixed question of Law and Fact. In fact had the question relating to Pecuniary Jurisdiction was not taken up and determined as Preliminary Issue by the trial Court, it would have been improper refusal to exercise the discretion under Order 14, Rule 2, C.P.C.
17. We may at once point out that even in cases relating to valuation, there might be instances of cases which require factual enquiry about the Market Value and that issue cannot be tried as Preliminary Issue. Where the valuation involves enquiry, recording of evidence, involving consideration of law and facts, in those cases issue of valuation cannot be determined in isolation as Preliminary Issue. Necessarily in those, cases valuation and question of Pecuniary Jurisdiction would have to be determined with the rest of the issues.
18. As discussed earlier, in the instant case, the valuation is apparent on the plaint averments in the plaint. On the application by the defendants, the learned District Munsif has rightly exercised the discretion in determining the issue of valuation and the question of Pecuniary Jurisdiction as the Preliminary Issue. The trial Court would have fallen into error, if it had declined to take up the issue of valuation of the suit and Pecuniary Jurisdiction as the Preliminary Issue.
19. Defendants 1 to 3 filed written statement on 17.4.1998. In their written statement D1 to D3 have raised the question of jurisdiction only in few sentences alleging:
Defendants 1 to 3 have not elaborated on the valuation nor raised the question of Pecuniary Jurisdiction and insisting upon that point to be determined as the Preliminary Issue. Nearly two years after filing the written statement defendants 1 to 3 have filed the application I. A. No. 552/2000 on 16.10.2000 raising the issue of valuation and Pecuniary Jurisdiction. This is opposed by the Respondent/Plaintiff that the trial Court ought not to have entertained the application under Order 14, Rule 2, C.P.C questioning the Pecuniary Jurisdiction of the Court to be tried as the Preliminary Issue nearly after the lapse of three years. The delay in filing the application by the defendants 1 to 3, calling upon the Court to exercise the discretion in determining the valuation of the suit as the Preliminary Issue does not in any way take away the jurisdiction of the trial Court nor does it render the decision as improper exercise of discretion. Since the question of valuation of the suit and the Pecuniary Jurisdiction in the light of apparent valuation of the suit is a pure question of law and the trial Court has rightly exercised the discretion in determining the question of valuation as the Preliminary Issue and this point is answered accordingly.
20. Points 2 to 4; The suit properties relate to A Schedule immovable property and B Schedule Bank Deposits. A Schedule relates to immovable properties as under:
Item S. No. and extent Belongs to Item No.1 S.No.80/1 O . 74-1/21 ..............149
with 3 H.P. Motor Pump set Plaintiff and her sister purchased under Sale Deed dated 8.9.1960 Item No.2 S.No.80/1 0.74-1/2 & ..............
1.49 House thereon Plaintif s husband purchased under Sale Deed dated 8.9.1960 Item No.3 House Property in Melakunnapatty D.N0.3/48-A Allotted to Plaintiff's husband in the family partition B. Schedule relates to Bank Deposits more than Rs. 1,50,000 lying with Nationalised Banks-D4 to D6. According to defendants 1 to 3 the Bank Deposits would be more than Rs. Two Lakhs.
21. As noted earlier the suit is one for declaration, declaring the plaintiff as the legal heir of deceased Chinnapoovan and for permanent injunction. Each of the three reliefs are notionally valued at Rs. 400 each and a total Court fee of Rs. 91.50 is paid as noted below:
(i) For declaratory Relief declaring Plaintiff as the Legal Heir of Chinnapoovan Notionally valued u/s. 25(d) at Rs.400 and C.F paid Rs.30.50
(ii) Permanent Injunction relating to A Schedule Property Rs.30.50
(iii) Permanent Injunction relating to B Schedule FDR which according to the plaintiff nearly Rs.1,50,000 Rs.30.50 Rs.91.50 Thus plaintiffs prayer for declaring her as the Legal Heir of Chinnapoovan and the relief of permanent injunction valued under Section 27(c) of the Act relating to immovable property and FDRs as noted above. Though the suit is one for bare permanent injunction the relief in substance asked for is only to declare the plaintiff being entitled to the Fixed Deposits and to withdraw the same and also relating to the immovable properties.
22. The contention of Revision Petitioner/Plaintiff is that the question of Court Fee must be considered only in the light of allegations made in the plaint and the question of Court Fee cannot be influenced either by plea in the written statement or the objection raised by the defendants. One line of thinking is that:
Whether proper Court-fee is paid on a plaint is primarily a question between the plaintiff and the State and that the defendants who may believe and even honestly that proper Court-fee has not been paid by the plaintiff has still no right to move the superior Courts by appeal or in revision against the order adjudging payment of Court-fee payable on the plaint. This view is followed by some decisions that the question of Court Fee is between the plaintiff and the Court.
23. But consistent views of most of the Courts are that the Courts are not to be governed by the plaint averments, but the substance of the relief asked for is to be looked into. If the relief asked for is avoidance of the sale deed, relief of declaration is necessary and the Court fee is to be paid for the same Kayathan Roche v. K. Chinnayya Roche, AIR 1939 Mad. 435. In a suit for declaration the Bank Guarantee is not enforceable. In Transformer and Switch Gear Ltd rep by its Chief Executive v. M.P. Electricity Board rep by its Controller of Stores and Purchases Jabalpur and another, 1990 (1) L.W. 89 Abdul Hadi, J. held that the Court fee is payable under Section 40 of the Court Fee Act and the same cannot valued under Section 25(d) since the sum and substance of the prayer was to cancel the said Bank Guarantee.
24. Indeed the allegations in the plaint should normally govern the frame of suit. Nevertheless Courts have to be not only vigilant and read between the lines with a view to arrest the tendency of the litigant to undervalue the relief, pay minimum Court fee and obtain substantial relief, but also ensure that the State does not lose revenue. This principle has been emphasized by the Supreme Court as well as the various High Courts. In Shamsher Singh v. Rajinder Prasad and Ors., , the Supreme Court has held thus:
"The Courts in deciding the question of Court fee should look into the allegations in the plaint to see what is the substantive relief that is asked for. 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."
25. Thus while verifying/considering the question of Court Fee, the Court shall not be carried by the form in which the plaint is drafted. The Court has the onerous duty of going into the substance to ascertain the base for the reliefs claimed and the reliefs that are really emerging from the averments and the relief asked for in the plaint. The cardinal principle that should be borne in mind while disposing a question relating to Court Fee or verifying the plaint is that the Court should not be carried away by the form in which the plaint is drafted; but the Court should keep in mind the substance to ascertain the actual relief asked for.
26. The argument advanced on behalf of the revision petitioner that two-fold permanent injunction asked for by the plaintiff is only the relief of permanent injunction simpliciter and no more and that the suit is correctly valued under Section 27(c) does not merit acceptance. Though the relief asked for is only permanent injunction, that relief of injunction is consequential to the declaratory relief that the plaintiff is the legal heir. In the context of the defendants 1 to 3 being appointed as Nominees to the FDRs, the substance of the relief asked for is only to declare the legal heirship right of the plaintiff and consequentially restraining the defendants 1 to 3 from withdrawing the same and thereby the plaintiff to withdraw the same. Though the relief of permanent injunction is not explicitly connected or omitted to be stated as consequential, in essence the relief is only for declaration and for consequential permanent injunction. The plaint ought to have been valued at the market value and the face value of the Fixed Deposits which certainly exceed Rupees Two Lakhs.
27. In fact the valuation of the suit and maintainability of the same in the Court of District Munsif could have been gone into even at the time of admission of the plaint. But there seems to have been no attempt to go into that aspect. It is always desirable that the Particulars of Valuation is insisted to be furnished in the plaint. In the case in hand, from the plaint averments, no such Particulars of Valuation is stated in the plaint. In my view, even at the time of admission of the plaint, the Court ought to have verified the substance of the plaint and the relief asked for.
28. More often than not, most of the valuable claims and money suits relating to valuable properties involving huge market value are filed under Section 27(c) stating "Incapable of Valuation" and notionally valuing the same at Rs. 400. This tendency of filing the suits relating to the properties of huge valuation under Section 27(c) need to be arrested. Courts would have to be vigilant in verifying the plaint carefully and with circumspection. Duty cast upon the Subordinate Courts in verifying the plaint and collecting the proper Court fee cannot be disowned saying that the Court is bound to accept the plaint averments. Duty is cast upon the Judicial Officers and also the Head Ministerial Officers who are in charge of verifying the plaint with regard to the valuation and the payment of Court fee.
29. At this juncture the views of the Supreme Court that there must be broad correlation with the fees collected and the Cost of Administration of Civil Justice need to be emphasized. Referring to the various case laws and elaborately considering the concept of Court Fees the Supreme Court insisted upon broad and general correlation between the Court Fee and the Expenditure involved in rendering the Judicial Service. To impress upon the Subordinate Courts, the Advocates and the litigant public about the duty of proper valuation of the suits and payment of Court Fee, it is appropriate to refer to the following observations of the Supreme Court in P.M. Ashwathanarayana Setty v. State of Karnataka, which read thus:
"A fee is, therefore, a charge for the special service rendered to a class of citizens by Government or Governmental agencies and is generally based on the expenses incurred in rendering the services....
If the essential character of the impost is that some special service is intended or envisaged as a quid pro quo to the class of citizens which is intended to be benefited by the service and there is a broad and general correlation between the amount so raised and the expenses involved in providing the services, the impost would partake the character of a "fee" notwithstanding the circumstance that the identity of the amount so raised is not always kept distinguished but is merged in the general revenues of the State and notwithstanding the fact that such special services, for which the amount is raised, are, as they very often do, incidentally or indirectly benefit the general public also. The test is the primary object of the levy and the essential purpose it is intended to achieve. The correlation between the amount raised through the "fee" and the expenses involved in providing the services need not be examined with a view to ascertaining any accurate, arithmetical equivalence or precision in the correlation; but it would be sufficient that there is a broad and general correlation."
30. Having regard to the law laid down by the Supreme Court, the Subordinate Courts are to be conscious of their duty in verifying the plaints for proper valuation and collecting proper Court fee, to maintain broad and general correlation between the totality of the fee collected on the one hand and the total expenses of the services on the other is established.
31. Equal amount of duty is cast upon the Advocates and the litigants in properly valuing their suits to augment the Revenue of the State by paying proper Court Fee. The Advocates' litigant publics are to address themselves that the essential part of calculation of Court Fee is to maintain broad and general correlation between the fee collected and the expenses of the services on the other.
32. In the case in hand plaintiff Solaiammal is said to be aged about 70 years. The learned counsel appearing for the Revision Petitioner/ Plaintiff submitted that the aged woman like the plaintiff cannot be harassed to pay the heavy Court fee and further dragging her to the Sub Court. In the realm of proper valuation of the plaint and payment of correct Court fee, absolutely there is no place in Judicial Generosity. Correct valuation of the plaint and the payment of correct Court fee for the purpose of pecuniary jurisdiction cannot be sacrificed showing judicial generosity.
33. The finding of the District Munsif, Thuraiyur that the suit is not properly valued/on the market value is based upon the facts and materials. There is no reason warranting interference. The order of the learned District Munsif, Thuraiyur is to be confirmed and this civil revision petition is bound to fail. The Revision Petitioner/Plaintiff is directed to present the plaint in proper Court on payment of proper Court fee.
34. For the reasons stated above, the order of the District Munsif, Thuraiyur in LA. No. 552 of 2000 in O.S.No. 285 of 1997 (dated 10.11.2000) is confirmed and the civil revision petition is dismissed.