Andhra HC (Pre-Telangana)
Shanta Bai vs Trilok Chand And Ors. on 31 October, 2003
Equivalent citations: 2004(1)ALD643, 2004(3)ALT694
ORDER P.S. Narayana, J.
1. The plaintiff in O.S. SR No. 4409 of 2003 on the file of the District Judge, Ranga Reddy District, L.B. Nagar at Hyderabad, aggrieved by the order dated 28-6-2003 upholding the objection taken by the office relating to the payment of Court fee under Section 34(1) of Andhra Pradesh Court Fees and Suits Valuation Act, 1956, (for short hereinafter referred to as 'the Act' for the purpose of convenience) has preferred the present Civil Revision Petition.
2. Sri B. Narasimha Sarma, the learned Counsel representing the revision petitioner submitted that in the plaint, the plaint schedule contains A, B and C schedule properties and the suit O.S. No. 484 of 1997, referred to in the plaint, relates to only the plaint-B schedule property. The learned Counsel submitted that the mere pleading that the plaintiff along with Defendants 1 and 2 filed a suit for delivery of possession after evicting the defendants in the said suit, would not in anyway alter the situation as far as payment of Court Fee is concerned, especially in the light of the fact that there is a specific pleading relating to joint possession. The learned Counsel also submitted that even the Court fee issue can be a triable issue and at the appropriate stage, the same can be raised and at any rate such objection cannot be taken at the stage of the numbering of the suit. The learned Counsel also placed strong reliance on A. Divakrupamani v. A. Sakuntala Devi, .
3. As can be seen from the impugned order, the office objection in respect of payment of Court fee on the ground that the plaintiff is not in joint possession of the plaint schedule properties along with the defendants and hence, the Court fee is payable under Section 34(1) of the Act and not under Section 34(2) of the Act, was upheld. As can be seen from the pleading, no doubt the plaintiff in the plaint had pleaded that she along with Defendants 1 and 2 filed O.S.No. 484 of 1997 for certain reliefs like delivery of possession and eviction. It is in relation to plaint Schedule-B property. It is pertinent to note that while deciding whether the Court fee is payable under Section 34(1) or 34(2) of the Act in a partition suit the allegations made in the plaint alone may have to be looked into at the stage of the numbering of the plaint. Section 34 of the Act dealing with partition suits reads as follows:
"Partition Suits :--(1) In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff who has been excluded from possession of such property, fee shall be computed on the market value of the movable property or three-fourths of the market value of the immovable property, included in the plaintiff's share.
(2) In a suit for partition and separate possession of joint family properly or property owned, jointly or in common, by a plaintiff who is in joint possession of such property fee shall be paid at the following rates:
When the plaint is presented to-
(i) a District Munsif Court Rupees fifty
(ii) a Subordinate Judge's Rupees one hundred if the
Court or a District Court. value of plaintiff's share is
less than Rs. 10,000/-.
Rupees two hundred if the
value is not less than
Rs. 10,000/-.
(3) Where, in a suit falling under Sub-section (1) or Sub-section (2) the plaintiff or the defendant seeks also cancellation of decree or other document of the nature specified in Section 37, separate fee shall be payable on the relief of cancellation in the manner specified in that section."
4. In Kanuri Venkata Rangadass v. Kanuri Venkata Krishna Rao, , it was held by the learned Single Judge that wherefrom the contents of the plaint, it can be inferred that the plaintiffs are in joint possession of a part of the property of which a share by way of partition is claimed the Court fee is payable as required by Sub-section (2) and not Sub-section (1) of Section 34 of the Act.
5. In, In Re Mathali Goundar's, , case the same view was expressed by Madras High Court. In A. Divakrupamani's case, cited supra, a Division Bench of this Court held that at the inception at the time of numbering of the suit, Court has to take into consideration the allegations made in the plaint and accept the Court fee paid if it is in conformity with the allegations made therein and Court has always power to frame a triable issue if it is challenged by other side or it can also issue cheque slip at any stage under Section 11 of the Act for payment of proper Court fee and return of plaint requiring plaintiff to pay more Court fee under Section 34(1) of the Act is not proper. Hence, viewed from any angle, merely because in the pleading it was stated that a suit was filed in relation to a portion of the schedule i.e., item specified in the Schedule B of the plaint, I am of the considered opinion that the learned Judge had totally erred in upholding the objection of the office and directing the petitioner-plaintiff to pay Court fee under Section 34(1) instead of under Section 34(2) of the Act.
6. In view of the same, the impugned order is hereby set aside with a direction to number the suit, if it is otherwise in order and proceed further in accordance with the law. Accordingly the Civil Revision Petition is allowed. No order as to costs.