Kerala High Court
Smt. Sumithra vs Smt. Kamala Bair And Ors. on 6 December, 1978
Equivalent citations: AIR1979KER164, AIR 1979 KERALA 164, (1979) ILR(KER) 2 KER 124 ILR (1979) 2 KER 124, ILR (1979) 2 KER 124
ORDER George Vadakkel, J.
1. The plaintiff to the suit out of which this revision arises is the revision petitioner. The suit is one for partition of the plaint schedule properties and for separate allotment of 1/4th share which the plaintiff claims she is entitled to. Defendants 2 and 3 have filed written statements supporting the plaintiff's case. First defendant contests the suit. The suit is still pending and it is common case before me that evidence has been closed in the case and arguments are over. At that stage it seems the lower court passed the order under revision, by which it took the view that issues 5 to 7 should be answered before the suit is disposed of. Taking that view the learned Munsiff further said that a finding on these Issues could be recorded only after obtaining a Commissioner's report. By the order under revision the lower court directed the plaintiff to deposit Rs. 300/- as Commission batta, and said that on deposit of the above said amount a commission would be issued for assessing the market value of the plaint schedule properties.
2. Issues 5 to 7 are as follows :
"5. What is the value for the purpose of jurisdiction?
6. Whether the suit is within tha pecuniary jurisdiction of this Court?
7. Whether court-fee paid is correct? These issues have been raised on the contention raised by the 1st defendant that the plaintiff has deliberately under-valued the properties, that if the properties are properly valued the suit will not be maintainable in the Munsiff Court and that the valuation for the purpose of court fee and jurisdiction is incorrect."
3. It is contended before me on behalf of the plaintiff-revision petitioner that in view of the provisions contained in the Kerala Court Fees and Suits Valuation Act, 1959 -- shortly stated the Act -- and particularly the provisions in Chap. III thereof, the lower court has no jurisdiction to reassess the market value of the properties, be it for the purpose of determining the correct court fee payable on the plaint, or be it for ascertaining its pecuniary jurisdiction. Learned counsel referred me to the decision of this Court in Janaki Amma v. Krishnan (1978 Ker LT 463) and the Full Bench decision of the Andhra Pradesh High Court reported in C. C. Reddy v. K. C. Reddy ((1968) 2 Andh WR 616): JLR (1969) Andh Pra 1042. These decisions seem to support the contention as aforesaid.
4. In 1978 Ker LT 463, I had occasion to consider the provisions of the Act contained in Chap. III, I said therein that the court can take up the question of correct court fee payable on a plaint only at specified stages, five in number. Therein I said :--
"Firstly, the court has to decide that question before ordering registration of the plaint, and at this stage the court cannot travel outside the mate rials and allegations contained in the plaint and the materials contained in the statement, if any, filed under Sec tion 10 of the Act -- Section 12 (1).
Secondly, thereafter the court can take up this question for decision only if a defendant raises the same by his written statement filed before the first hearing or before evidence is recorded on the 'merits of the claim' (as denned in the Explanation to Section 12) and when so raised, the court has to give a decision thereon before evidence is recorded af fecting such defendant -- Section 12 (2). Thirdly, a person added as a defendant after framing of issues (but not as a successor or representative in interest of one already on record and who had opportunity to raise the question) may with the permission of the court, raise it again, and if so raised, the court can determine the sufficiency of the court fees paid before recording of evidence affecting such defendant on the merits of the claim -- Section 12 (3). Fourthly, whenever a party becomes liable to pay 'additional fee' by reason of an issue framed in the suit, the court can de termine and levy such 'additional fee' (Section 13) in accordance with the provi
sions of Section 12 ..... Fifthly, further review of the decision on the question of deficiency of court fee paid is possible only on receipt of report from a court fee examiner deputed by the High Court under Section 18 (1) of the Act."
5. The same view has been expressed by the Full Bench of the Andhra Pradesh High Court in C. C. Reddy v. K. C. Reddy, (1968) 2 Andh WR 616 which was not noticed by me in the decision of this Court. The questions referred for decision of the Full Bench in the Andhra case are "(1) Whether in a suit governed by Sections 32 and 33 of the Andhra Court Fees and Suits Valuation Act, 1956 in which the plaint is registered, the amount estimated in the plaint is liable to be reviewed and as a consequence the plaintiff is bound to amend the valuation and pay higher court fee?
(2) If the answer to the first question is in the affirmative, whether the liability to amend the plaint and pay the additional court fee should be confined only to cases of deliberate underestimation of the amount or sham valuation or extends to every case where the defendant contends that the amount sued for is inaccurate and not approximate; and also whether the investigation can extend beyond the averments in the plaint?
(3) Whether, if, as a result of the review under Section 11 (b), the amount estimated in the plaint exceeds the pecuniary jurisdiction of the court which the suit is instituted, the court would lose its jurisdiction to try the suit?"
The first question was answered In the affirmative with a rider thereto viz., 'where the question of valuation affects the jurisdiction of the court it must be decided before the hearing of the suit.'
6. The Andhra Pradesh High Court made specific reference to Section 11 (4) of the Andhra Pradesh Court Fees and Suits Valuation Act, 1956 which is as follows :--
"xx xx xx (4) Any question relating to the value for the purpose of determining the jurisdiction of courts shall be heard and decided before the hearing of the suit as contemplated by order 18 in the First Schedule to the Civil P. C. (Vol. 1908)."
Referring to that provision and the other provisions in Section 11 which correspond to Section 12 of the Kerala Act the Full Bench said that Sub-section (4) casts a duty on the court to decide the question relating to the value for the purpose of determining the jurisdiction, but this must be done before the commencement of the hearing of the suit.
7. Section 11 (4) of the Andhra Act corresponds to Section 12 (5) of the Kerala Act As per it, "All questions as to value for the purpose of determining the jurisdiction of courts arising on the written statement of a defendant shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim."
As pointed out by the Full Bench in the Andhra case, it is imperative that all questions relating to value for the purpose of determining the jurisdiction of the court which are raised by a written statement have to be heard and decided by the court before the suit enters evidence stage as regards the 'merits of the claim' which expression as per the Explanation that follows Sub-section (5) of Section 12 means 'matters which arise for determination in the suit, not being matters relating to the frame of the suit, misjoinder of parties and causes of action, the jurisdiction of the court to entertain or try the suit or the fee payable but inclusive of matters arising on pleas of res judicata, limitation and the like.' Sub-section (5) of Section 12 of the Kerala Act read with the Explanation leaves no room for doubt that issues 5 to 7 in the instant case raised on the contention advanced by the defendant that the plaintiff has deliberately under-valued the plaint schedule properties, that the valuation for the purpose of court fee and jurisdiction is incorrect and that if properly valued the suit would be beyond the pecuniary jurisdiction of the court in which the suit has been instituted are to be heard and decided before evidence on the substantial questions arising in the case is recorded.
8. As stated by the Full Bench of the Andhra Pradesh High Court, this is so for obvious reasons, viz., that after the suit has entered the evidence stage and the trial has proceeded the defendants should not be allowed to agitate that the suit is not maintainable in that court for want of pecuniary jurisdiction. The scheme of the provisions contained in Section 12 of the Kerala Act is that the same does not permit the plaintiff to be the sole arbiter of the amount on which the relief sought is valued and the defendants are also given a voice. If the defendants avail of the opportunity to raise those questions, they are matters to be determined at specified stages, viz., at the 2nd, 3rd, 4th and 5th stages mentioned in the decision of this Court in 1978 Ker LT 463, and at no stage after the suit has entered the stage of recording evidence on the merits of the claim.
9. When the arguments began I had some doubt as to whether Section 13 of the Kerala Act would not enable the court to reassess the market value of the subject matter of the suit after the suit has entered the stage of recording evidence. Section 13 reads :
"Where a party becomes liable to pay additional fee by reason of an issue framed in the suit, the provisions of the last foregoing section shall apply to the determination and levy of such additional fee subject to the modification that where the party does not pay such additional fee within the time allowed, the court shall strike off the issue and proceed to hear and decide the other issues in the case."
10. On a closer examination of the provisions, it appears to me that the issues contemplated by Section 13 cannot be issues relating to questions as to valuation of the suit either for the purpose of levy of court fee or for the purpose of determining the pecuniary jurisdiction of the suit either for the purpose on the merits of the claim as defined in the explanation that follows Sub-section (5) of Section 12 of the Act. This is so, because that provision is a self-contained provision which does not enable the court to reject the suit for failure to comply with payment of additional fee as determined under that section. It enables the court only to strike off the particular issue or issues and requires the Court to proceed to hear the other issues in the case. Obviously, Section 13 would not enable the court to return the plaint for want of pecuniary jurisdiction. Moreover, if Section 13 of the Act is taken as empowering the Court to re-determine the valuation of the suit, or to re-assess the valuation of the suit for the purpose of levy of court-fee or jurisdiction of the court, Sub-section (5) of Section 12 would become otiose, in so far as all questions as to value for the purpose of determining the jurisdiction of the court arising on the written statement of a defendant have to be heard and decided by the court before the evidence is recorded on the merits of the claim. In that view I do not think that Section 13 would be of any assistance to have the valuation of the suit -- reassessed after the suit has entered the stage of recording I evidence.
11. The Andhra Pradesh High Court by the decision aforesaid, on the basis of the answers received from the Full Bench, dismissed the revision on the ground that the trial has already begun. There, as in this case, an issue had been framed as to 'whether the court fee paid is correct and whether the court has got jurisdiction to try the suit.' It was contended on behalf of the respondent-plaintiff therein that the trial of the suit has commenced and therefore the question of under-valua-tion should not be permitted to be agitated. This contention was noticed by the Full Bench which said that that is a matter to be dealt with by the court which disposes of the revision matter in accordance with the answers given by the Full Bench. Obviously in view of the answer to the first question wherein the Full Bench pointed that whether the question of valuation affects the jurisdiction of the court must be decided before the hearing of the suit, the court where the revision matter finally came up for disposal dismissed the same on the ground that trial has already begun. That means that the court has no jurisdiction to take up the question after the case enters the stage of recording evidence. The position is the same under the Kerala Act also and that is so in view of Section 12 (5) of the Act. As stated in the beginning of this judgment, the case has not only entered the stage of recording evidence; but evidence has been closed and arguments are over. At this stage the lower court is not competent and has no jurisdiction to reassess the market value of properties for the purpose of either levy of additional court fee or determining the question whether the suit is outside its pecuniary jurisdiction.
The revision petitioner Is entitled to succeed. The order under revision is eet aside and the lower court is directed to proceed with the disposal of the suit in the light of what is stated herein before. The parties will bear their costs.