Madras High Court
Laljivora vs Srividya on 23 April, 2001
Equivalent citations: AIR2001MAD376, (2001)2MLJ481, AIR 2001 MADRAS 376, (2001) 2 MAD LJ 481 (2002) 1 MAD LW 398, (2002) 1 MAD LW 398
Author: D. Murugesan
Bench: D. Murugesan
ORDER
1. The above civil revision petition has been filed challenging the order and decree dated 6.11.2000 made in I.A.No.67 of 2000 in O.S.No.435 of 1996 on the file of the District Munsif Court, Melur. The 6th defendant in the suit is the civil revision petitioner. The respondent filed a suit seeking for a relief of declaration of several sale deeds executed by the defendants 1 and 2 in favour of the defendants 3 to 10 on various dates are not valid and binding on the plaintiffs since the suit was valued under Section 25(d) of the Tamil Nadu Court fees and Suit Valuation Act (Act XIV of 1955) hereinafter called as "The Act". According to the petitioner who was the 6th defendant in the suit, the suit ought to have been valued under Section 40 of the Act and if the suit is valued under Section 40 of the Act, the Court fees should be paid on the market value of the suit property and in such event the learned District Munsif, Melur may not have the jurisdiction. Therefore, the 6th defendant filed I.A.No.67 of 2000 under Section 12(2) of the Tamil Nadu Court Fees and Suit Valuation Act and Section 151, C.P.C. to frame an additional issue if necessary relating to valuation and court fees in O.S.No.435 of 1996 and hear argument on that issue before evidence is recorded on the merits of the claim. The said application came to be dismissed by the learned District Munsif, Melur by order dated 6.11.2000. It is against this order, the present civil revision petition has been filed.
2. The learned counsel for the petitioner would contend that the rejection of the application filed by the petitioner under Section 12(2) of the Act is totally erroneous since in. the event the petitioner succeeds in the petition and the plaintiff is directed to pay the proper court fee, the Court may not have jurisdiction to try the suit itself. Therefore, in all probability the learned District Munsif ought to have framed an additional issue relating to valuation and court fees and hear the arguments. In this connection, the learned counsel would rely upon a judgment of this Court reported in Parvathy v. N.Arumugham, 1988 (1) MLJ 92 wherein this Court while considering the scope of Section 12(2) of the Act held that the Court below ought to have allowed the application and decided the question of payment of court fee on the relief as preliminary issue before proceeding with the other issues framed in respect of the valuation of the claim. This Court came to the above conclusion since when the court fee to be paid by the plaintiff exceeds the limits of the jurisdiction of the Court with regard to the valuation, the Court is certainly bound to return the plaint for presentation before proper Court.
3. The learned counsel for the respondent on the other hand would submit that the suit was filed as early as in the year 1996 and the revision petitioner filed written statement also and the issues were framed in the year 1997. The civil revision petitioner also filed additional written statement during the year 1998. The suit was posted in the list during 1998-99 on certain occasions. Only on 6.11.2000, the civil revision petitioner filed I.A.No.67 of 2000 under Section 12(2) of the Act. The said petition has been filed only to delay the disposal of the suit on the ground of belated application. In this context the learned counsel relied upon a judgment of this Court reported in Major Ramachandran and another v. Mrs.Rema Jayarajan rep. by Power Agent, . The learned counsel would further contend that the issue relating to valuation of property for the purpose of court fee cannot be decided as preliminary issue. Hence, the learned counsel submitted that the civil revision petition has to be dismissed.
4. I have considered the rival submissions. The suit was filed as early as in the year 1996 and the revision petitioner who was the 6th defendant in the suit also filed written statement during the year 1997 itself. The issues were also framed in the year 1997 and the revision petitioner has also filed additional written statement during 1998. The suit was posted for trial in the list during the year 1999 on certain occasions. After the same was adjourned, the revision petitioner filed I.A.No.67 of 2000 on 6.11.2000 under Section 12(2) of the Act read with Section 151 of C.P.C. for a direction to frame the additional issue if necessary relating to valuation of court fees and hear arguments on the issue. From the facts narrated above, it would be clear that the revision petitioner has not challenged the valuation of the suit even when he filed the written statement during the year 1997. He allowed the Court to frame the issue during the year 1997 and he also filed an additional written statement only in the year 1998 and he also allowed the Court to call the suit for trial in the list during the year 1999 and 2000. All of a sudden, only on 6.11.2000 the petitioner filed I.A.No.67 of 2000 contending that the suit ought to have been valued under Section 40 of the Act instead of under Section 25(d) of the Act. There is no explanation whatsoever in the affidavit filed in support of the above LA. sworn to by the petitioner as to why the petitioner has not approached the Court with the same petition at the earliest point of time. In' this context, it would be relevant to refer to the judgment reported in Major Ramachandran and another v. Mrs.Rema Jayarajan rep. by Power Agent, wherein this Court has held as follows:-
"As already pointed out that the suits are of the year 1990 and the written statements have been filed in the year 1991, trial has commenced and in fact the examination of the witnesses has also been completed. At this stage, this application has been filed. It may be that the application is maintainable, but it is for the courts to decide the jurisdictional issue, which is a mixed question of law and fact and such an issue is not required to be answered as preliminary issue and at any rate at this belated stage. There is no escape as the petitioner had slept over the malter, taken part in the proceedings before the court below and allowed the recording of the evidence and thereafter had taken out the application. No useful purpose will be served to try the jurisdictional issue as preliminary issue at this belated stage, as the trial of the suits have already been completed. Further preliminary issue had to be decided on the basis of the pleadings, documents and oral evidence, as it is mixed question of law and facts along with other issues as well."
5. In the present case also the petitioner has allowed the plaintiff to examine herself as P.W. 1 and the evidence of P.W.2 has also been recorded as could be seen from paragraph 3 of the counter affidavit dated 15.3.2001 filed by the 1st plaintiff in the civil revision petition. Therefore, I am of the considered view that no useful purpose would be served to try the jurisdictional issue as preliminary issue at this belated stage as the trial of the suit have already been completed. However, it is seen that even though arguments were advanced before this Court as if the issue of payment of court fee should be decided as preliminary issue, the petition filed under Section 12(2) of the Act read with Section 151 of C.P.C. seeks for a direction to frame an additional issue if necessary relating to the valuation and court fee in the suit and hear arguments. When the petitioner has allowed the Court to frame issues already and filed written statement and subsequently after filing additional written statement and also allowed the Court to take the case for trial to examine P.W.1 and P.W.2, it is not now open to the revision petitioner to seek for such a direction for framing an additional issue. The attempt on the part of the revision petitioner in filing the application is nothing but a dilatory tactics to prolong the litigation. Therefore, I hold that the attempt on the part of the petitioner in seeking for a direction to frame an additional issue with regard to the valuation of the suit is nothing but a dilatory tactics and the same cannot be entertained especially when the Court has also examined P.W.1 and P.W.2.
6. However, as has been held by this Court in the judgment reported in M.Thandavaraya Poosall and Five others v. M.Periyasamy Asari and nine others, 2000 (3) MLJ 342 that under Order 14, Rule 2 of Civil Procedure Code, only two categories of issues can be decided as preliminary issue namely (a) the jurisdiction of the court or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. The issue relating to the valuation of the court fee does not fall under the provisions of Order 14, Rule 2 of C.P.C. Therefore, the submission of the learned counsel for the pelilioner that the question as to the valuation and payment of court fee should be decided as preliminary issue cannot be accepted. Moreover, as already communicated, the prayer in the I.A. is only for framing the additional issue and not seeking for a direction to the Court to decide the question of valuation and payment of court fee as preliminary issue under Order 14, Rule 2.
7. In view of my above findings, I do not find any merit in the contention of the learned counsel for the petitioner that the impugned order suffers from inherent defect and it also suffers on the ground of error apparent on the face of the record. Accordingly, I do not find any merit in the civil revision petition and the same is dismissed. No costs. Consequently, C.M.P.No.3726 of 2001 is also dismissed.