Madras High Court
P.S.Karunakaran vs M/S.Madras Race Club on 16 February, 2010
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 16.2.2010. CORAM THE HON'BLE MR.JUSTICE M.JEYAPAUL C.R.P.(PD)No.40 of 2010 and M.P.No.1 of 2010 1. P.S.Karunakaran 2. P.S.Kumar Petitioners vs. M/s.Madras Race Club, rep by Ms.Aruna, Officer-in-charge (Legal), Guindy, Chennai 600 032. Respondent Civil Revision Petition against the order dated 9.12.2009 in I.A.No.22833 of 2009 in O.S.No.353 of 2006 passed by the III Assistant Judge, City Civil Court, Chennai. For petitioners: Mr.A.R.Karunakaran For respondent : Mr.L.Damodharan ORDER
The defendants filed petition invoking Order VII Rule 11 of the Code of Civil Procedure praying to reject the plaint. The said petition was dismissed by the Trial Court. Hence, the defendants are before this court in the present civil revision petition.
2. The respondent/plaintiff M/s.Madras Race Club filed a suit praying inter alia for a direction to the defendants to re-deliver the vacant possession of the encroached portion of the property measuring 5 grounds 357 sqft comprised in T.S.No.1 (part) Block No.13 morefully described in the suit B schedule.
3. The plaintiff has contended in the suit that the plaintiff got A schedule property comprising 83.12 acres on lease alongwith other properties under the deed of lease dated 6.3.1946 from the Government. It is alleged that the plaintiff, as a lessee, has been in occupation of the A schedule property ever since 1845. The defendants encroached upon a portion of the A schedule property admeasuring 5 grounds and 357 sqft and put up some illegal construction over there. With the above contentions, the plaintiff has sought for the aforesaid relief of delivery of vacant possession of the encroached portion of the property.
4. The revision petitioners/defendants 1 and 2 have contended in the petition filed by them under Order VII Rule 11 of the Code of Civil Procedure that the respondent/plaintiff has valued the prayer for delivery of possession under section 50 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 whereas section 30 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 would squarely apply to a suit for possession not otherwise provided for. Alleging that the market value of the suit schedule property is worth several crores, the respondent/plaintiff seeks for rejection of the plaint as the suit was undervalued and there is evasion of payment of stamp duty.
5. The respondent/plaintiff in its counter has contended that only to protract and prolong the suit proceedings, the revision petitioners have filed the petition for the second time under Order VII Rule 11 of the Code of Civil Procedure seeking rejection of the plaint at a stage when the suit is pending part heard. It is contended that the respondent/plaintiff has rightly valued the suit under section 50 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 as the respondent is only a lessee paying rent to the Government. Therefore, the question of valuation of the suit under section 30 Tamil Nadu Court Fees and Suits Valuation Act, 1955 does not arise for consideration. At any rate, the petition filed under Order VII Rule 11 of the Code of Civil Procedure is not at all maintainable.
6. The Trial Court, having adverted to the provision under section 30 and 50 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 in the background of the fact that the respondent, being the lessee under the Government, has sought for vacant possession of the encroached portion of the property, held that the respondent has rightly valued the suit under section 50 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 .
7. The revision petitioners have filed the petition under Order VII Rule 11 of the Code of Civil Procedure seeking rejection of the plaint. A defendant in the suit can pray for rejection of the plaint only in a case where the plaint does not disclose cause of action or where the plaintiff failed to do correct valuation of the suit within the time frame fixed by the court when it was found that the relief claimed was undervalued or where the plaintiff failed to supply the requisite stamp paper within the time frame fixed by the court when it was found that the plaint was insufficiently stamped or where the suit is found to be barred by law or where the plaint was not filed in duplicate or where the plaintiff failed to present as many copies of plaint as there are defendants as directed by the court as per Order VII Rule 9 of the Code of Civil Procedure.
8. In the instant case, there was no direction by the court to correct valuation or to supply the requisite stamp paper within the time frame fixed by the Trial Court. The other limbs of the provision of Order VII Rule 11 of the Code of Civil Procedure also would have no application in the present case. The under-valuation of the relief prayed for in the suit cannot at all be a ground to reject the plaint. Therefore, the petition filed under Order VII Rule 11 of the Code of Civil Procedure is found to be totally misconceived and therefore, it is not at all sustainable.
9. Learned counsel appearing for the revision petitioners would vehemently submit that section 30 of the Tamil Nadu Court Fees and Suits Valuation Act will squarely apply to the case on hand and not section 50 of the said Act as it will have only a general application. It is his further submission that even in a case where a lessee prays for delivery of possession, it is only section 30 and not section 50 of the said Act is attracted.
10. Per contra, the learned counsel appearing for the respondent/plaintiff would submit that it is quite unjust to direct a lessee to pay court fees on the basis of the market value of the suit property in a suit for recovery of possession when he has no title to the suit property. In a case where the title holder of the property seeks for delivery of possession, section 30 would apply. In a case where a lessee, who is not the owner of the property, claims recovery of possession, it is only section 50 which would squarely apply.
11. Court fee for suits filed for declaratory relief and also for possession of immovable property is computed on the market value under section 25A of the Act. Where a prayer is made for possession of a Trust property the court fee is paid under section 28 of the Act. Where a prayer is made for possession of an immovable property under the Specific Relief Act, court fee is paid under section 29 of the Act. Where a prayer is made for possession in relation to Kanam, court fee is paid under section 34 of the Act. Where a prayer is made for possession of immovable property in a suit for partition, court fee is paid under section 37 of the Act. In a suit filed for joint possession of a joint family property, the court fee is paid under section 38 of the Act. Where a prayer is made for possession of immovable property in a suit for specific performance of a contract, court fee is paid under section 42 of the Act. Where a prayer is made by the landlord as against the tenant for possession of immovable property, the court fee is paid under section 43 of the Act.
12. Section 30 of the Tamil Nadu Court Fees and Suits Valuation Act reads as follows:-
"Suits for possession not otherwise provided for In a suit for possession of immovable property not otherwise provided for, fee shall be computed on the market value of the property or on rupees four hundred, whichever is higher."
13. Section 50 of the Tamil Nadu Court Fees and Suits Valuation Act reads as follows:-
"Suits not otherwise provided for In suits not otherwise provided for, fee shall be payable at the following rates:-
(i)In a Revenue Court Rupees fifteen (ii)In a District Munsif's Court Rupees thirty (iii) In the City Civil Court, Madras or a District Court
Rupees thirty if the value of the subject matter is Rs.5000 or less; rupees one hundred if the value is above Rs.5000 but below Rs.10,000; and rupees two hundred if the value is Rs.10,000 and above.
(iv) In the High Court Rupees three hundred
14. Section 30 Tamil Nadu Court Fees and Suits Valuation Act contemplates payment of court fee computed on the market value of the property. A lessee who is not the owner of a property cannot be asked to pay court fee computed on the market value of the property when he seeks for possession of the property from the encroacher. If a owner of the property claims a relief for possession not provided for under sections 25A, 28, 29, 34, 37, 38, 42 and 43 of the Act, he is to pay the court fee by computing on the market value of the property under section 30 of the Act. A lessee who does not have any title over the property when he seeks to claim for possession from an encroacher, he shall pay court fee only under section 50 of the Tamil Nadu Court Fees and Suits Valuation Act as the claim for possession made by a lessee has not been contemplated under sections 25A, 28, 29, 34, 37, 42, 43 and 30 of the Act.
15. The learned counsel appearing for the revision petitioner cites a decision of this court in D.PATTAMMAL v.K.KALYANASUNDARAM (AIR 1989 MADRAS 78) wherein it has been held as follows:-
"The question which arises for consideration is, when the section says, the fee has to be computed on the market value of the property does it relate to the value of the property as such or value of the interest claimed by the plaintiff in that property. According to learned counsel for the petitioner, the words 'market value of the property' should be construed as 'market value of the interest claimed by the plaintiff in the property'. Learned counsel submits that it is not in every case the plaintiff claims as absolute owner of the entire property. When he claims only a restricted interest in the property, or a portion of the property, in all such cases, the fee shall be computed only on the market value of such restricted interest or such portion of the property. Learned counsel submits that if any other construction is adopted, it would cause hardship to the litigants. No doubt, the argument is very attractive. But unfortunately for him, the language of the section is unambiguous. The section refers to 'immovable property' in the earlier part of it, and in the later part of it, it refers to 'the market value of the property'. The word 'property' occurring in the later part of the section should necessarily refer to the 'immovable property' occurring in the first part of the section. Hence, the value that has to be computed is, the market value of the immovable property, the possession of which is sought by the plaintiff in the suit. The contention that it can refer to the market value of the restricted interest claimed by the plaintiff cannot be accepted."
16. That was a case where the suit for possession was filed by the life estate holder during his lifespan. He is the owner of the property and nobody else can claim any absolute right over the property during his lifetime. Further, it is found that the court fee was, in fact, paid under section 30 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 in the aforesaid case. The question whether section 50 would apply in a case of such nature did not fall for determination in the aforesaid case. In view of the above, in the considered opinion of this court, the aforesaid ratio laid down by this court will have no application to the case on hand.
17. It has been ruled in NIDUGONDA RUDRAMANI AND ANOTHER v. CHADUVULA SRISAILAM AND ANOTHER (AIR 1954 MADRAS 200) that a suit for possession filed by the plaintiff as against the trespasser would attract payment of court fee on the market value of the property. That was a case where the title holder of the property filed suit for possession as against the trespasser. It is not a case where a lessee filed a suit as against the trespasser praying for delivery of possession. Of course, the Trial Court, in the instant case, has made a wrong observation that a suit as against the encroacher for delivery of vacant possession would attract payment of stamp duty only under section 50 of the Tamil Nadu Court Fees and Suits Valuation Act. At any rate, the court finds that the aforesaid ratio will not apply to the facts and circumstances of this case where a lessee and not a title holder of the property files a suit as against the trespasser.
18. Of course, tentative valuation given by the plaintiff in the suit shall not be arbitrary and unreasonable. Here, in this case, though the respondent/plaintiff chose to notionally fix the value of the property at Rs.1,00,000/= for the prayer for delivery of possession, it is found that the maximum court fee to be paid in a suit filed before the City Civil Court or Sub Court or a District Court is only Rs.750/= if the value of the property is computed at Rs.1,00,000/= and above. Therefore, the notional valuation given in the plaint by the respondent against the real market value would not have any adverse impact as maximum court fee has been paid as mandated under section 50 of the Tamil Nadu Court Fees and Suits Valuation Act.
19. The learned counsel appearing for the revision petitioner would also refer to a decision in OM PRAKASH RAWAL v. JUSTICE AMRIT LAL BAHARI (AIR 1994 HIMACHAL PRADESH 27). In the said case, the ratio laid down by the Supreme Court in SUJIR KESHAV NAYAK v. SUJIR GANESH NAYAK (AIR 1992 SC 1526) was found extracted as under:-
" (1) Where the question of Court-fee is linked with jurisdiction a defendant has a right to raise objection and the Court should decide it as a preliminary issue.
(2) But in those cases where the suit is filed in Court of unlimited jurisdiction the valuation disclosed by the plaintiff or payment of amount of Court-fee on relief claimed in plaint or memorandum of appeal should be taken as correct.
(3) This does not preclude the Court even in suits filed in Courts of unlimited jurisdiction from examining if the valuation, on averments in plaint, is arbitrary."
20. In the light of the aforesaid decision, the learned counsel appearing for the revision petitioner would submit that if the valuation of the suit exceeds Rs.10,00,000/=, the learned III Assistant Judge, City Civil Court, Chennai will have no jurisdiction and it is only the High Court which will have jurisdiction over the suit.
21. Of course, the question of court fee raised by the revision petitioner has a direct impact on the jurisdiction of the City Civil Court. Therefore, it is the duty of the City Civil Court to thrash out the question of court fee involved in the suit.
22. The Trial Court has held that the court fee paid by the lessee who filed a suit for delivery of possession from an encroacher under section 50 of the Tamil Nadu Court Fees and Suits Valuation Act is perfectly correct. This court also does not have any difference of opinion with respect to the ultimate decision arrived at by the court. When the Trial Court has not shirked its responsibility of determining the question of court fee which has a bearing on the jurisdiction of the court, the aforesaid ratio will have no application to the facts of this case.
23. The learned counsel appearing for the respondent/plaintiff refers to the decision of the Supreme Court in RATHNAVARMARAJA v. SMT.VIMLA (AIR 1961 SC 1299) wherein it has been held as follows:-
"The Act, it is true by S.19 provides that for the purpose of deciding whether the subject-matter of the suit or other proceeding has been properly valued or whether the fee paid is sufficient, the Court may hold such enquiry as it considers proper and issue a commission to any other person directing him to make such local or other investigation as may be necessary and report thereon. The anxiety of the Legislature to collect court-fee due from the litigant is manifest from the detailed provisions made in Ch.III of the Act, but those provisions do not arm the defendant with a weapon of technicality to obstruct the progress of the suit by approaching the High Court in revision against an order determining the court fee payable. In our view, 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."
24. The defendant is not entitled to file any revision petition as against the order passed by the Trial Court rejecting his plea as to insufficiency of stamp duty paid y the plaintiff. But, when the question of court fee has direct relation with the question of jurisdiction of the court itself, in that case, the defendant is entitled to file a revision petition aggrieved by the order passed by the Trial Court on the question of court fee. The ratio laid down by the Supreme Court does not bar the defendant to file a revision petition if he could establish that the question of court fee has direct nexus with the jurisdiction of the court.
25. Coming to the conduct of the revision petitioners, it is found that they, having lost the first round taken by them invoking the provision under Order VII Rule 11, once again invoked the very same provision on a different ground when the suit is made part heard.
26. It is held that the residuary provision under section 30 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 would apply only in a case where the owner of the property files a suit for recovery of possession, but, the residuary provision under section 50 of the said Act would squarely apply to a case where a lessee who does not have any title to the property prays for delivery of possession from the encroacher or trespasser as the case may be. The maximum court fee as provided under section 50 of the Act has been properly paid by the respondent/plaintiff. At any rate, the petition filed under Order VII Rule 11 of the Code of Civil Procedure is not at all maintainable as there was no direction flowed from the court for payment of any stamp duty and there was failure on the part of the plaintiff to pay the difference in court fee.
27. In view of the above, the revision fails and therefore, it stands dismissed. No costs. The connected Miscellaneous Petition is also dismissed.
16.2.2010.
Index: Yes.
Internet: Yes.
ssk.
To
1. III Assistant Judge, City Civil Court, Chennai.
2. The Record Keeper, V.R. Section, High Court, Chennai.
M.JEYAPAUL, J.
Ssk.
P.D. ORDER IN C.R.P.(PD) No.40 of 2010 Delivered on 16.2.2010.