Karnataka High Court
Manicklal Verma And Anr. vs Smt. Jamunadevi And Ors. on 8 February, 2002
Equivalent citations: AIR2002KANT332, ILR2002KAR2347, 2002(4)KARLJ400, AIR 2002 KARNATAKA 332, 2002 AIR - KANT. H. C. R. 1665, (2002) ILR (KANT) (1) 2347, (2002) 4 KANT LJ 400, (2002) 4 ICC 629
ORDER G.C. Bharuka, J.
1. Heard the learned Counsels for the petitioners and the respondents.
2. This is defendants' revision under Section 115 of the CPC. The suit is for possession of the suit property which has been valued at Rs. 14,00,000/- under Section 29 of the Karnataka Court Fees and Suits Valuation Act, 1958 (in short the 'Act') and ad voleram Court fee of Rs. 26,875/- has been paid. By the impugned order, the Court below has held that the Court fee paid on the plaint was sufficient.
3. The defendants disputed the valuation of the said suit property. The Court below, after examining the valuation given by the registered valuer and taking into account the age of the building which is about 60 years old, found that the Court fee paid on the plaint was sufficient.
4. According to the learned Counsel appearing for the petitioner/defendant, the Trial Court has miserably erred in determining the market value of the subject-matter of the suit by not taking into consideration the relevant factors and further by not holding proper enquiry in this regard as required under Section 11(2) of the Act. On the other hand, the learned Counsel appearing for the respondent has taken an objection to the very maintainability of the revision petition filed under Section 115 of the CPC and to substantiate his stand, he has relied on the judgment of the Supreme Court in the case of Rathnavarmaraja v. Smt. Vimla , .
5. Section 11(2) of the Act reads as under:
11. Decision as to proper fee in Courts.-
(1) xxx xxx xxx.
(2) Any defendant may, by his written statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim but, subject to the next succeeding sub-section not later, plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. If the Couit decides that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient, the Court shall fix a date before which the plaint shall be amended in accordance with the Court's decision and the deficit fee shall be paid. If the plaint be not amended or if the deficit fee be not paid within the time allowed, the. plaint shall be rejected and the Court shall pass such order as it deems just regarding costs of the suit.
6. With reference to the above provision contained in sub-section (2) of Section 11 of the Act, this Court has consistently held that if any defendant pleads in his written statement that the subject-matter has not been properly valued or the Court fee paid is not sufficient, then it is mandatory on the part of the Trial Court to decide the issue so raised before recording of the evidence. [See Umarabba v. Pathunni and Ors., 1984(2) Kar. LJ. 97, Thimmaiah v. Sreenivasa, 1995(5) Kar. L.J. 37, ILR 1999 Kar. 3660 and Umakanth M. v. M. Malathi and Ors., 1 1982(2) Kar. LJ. 220
7. In the present case, as already noticed, the Trial Court in fact has decided the issue on valuation and quantum of Court fee payable by holding an enquiry as it thought fit. Therefore, the Court cannot be said to have committed any error of jurisdiction in not considering the question of valuation and sufficiency of Court fee paid as mandated under Section 11(2) of the Act. The grievance of the defendant before this Court is that the valuation has not been done in proper manner. The question now is whether such a plea can be permitted to be raised in the revisional jurisdiction under Section 115 of the CPC or not.
8. The above question has been squarely answered by the Supreme Court in Rathnavarmamja's case, supra. In the case before the Supreme Court, the facts were almost the same as in the case at hand and the relevant provisions being Section 12(2) of the Madras Court Fees and Suits Valuation Act, 1955 is pari materia to Section 11(2) of the Act. The Supreme Court has held that:
"Whether proper Court fee is paid on a plaint is primarily a question between the plaintiff and the State. How by an order relating to the adequacy of the Court fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate. Again, the jurisdiction in revision exercised by the High Court under Section 115 of the Code of Civil Procedure is strictly conditioned by Clauses (a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the Subordinate Court or assumption of jurisdiction which the Court does not possess or on the ground that the Court acted illegally or with material irregularity in the exercise of its jurisdiction. The defendant who may believe and even honestly that proper Court fee has not been paid by the plaintiff has still not right to move the superior Courts by appeal or in revision against the order adjudging payment of Court fee payable on the plaint".
9. For the aforesaid reasons, it has to be held that in a case where the Trial Court has adjudicated upon the issue relating to valuation of the subject-matter of the suit and sufficiency of Court fee paid or payable, then he will be deemed to have acted within the jurisdiction to do so even if the decision is found to be erroneous or wrong on merits. That by itself cannot clothe defendant with the right of maintaining a revision before this Court under Section 115 of the CPC. No doubt, as provided under sub-section (4)(a) of Section 11 of the Act, he will have a right to raise such an issue before the Court of appeal if an occasion arises, and in such a situation the procedure laid down under the said sub-section will have to be followed for adjudicating and for recoveiy of the deficit Court fee and refund of the excess Court fee. For quick reference, Section 11(4)(a) of the Act is being reproduced hereunder:
Section 11. Decision as to proper fee in Courts.--
(1) XXX XXX XXX.
(4)(a) Whenever a case comes up before a Court of appeal, it shall be lawful for the Court, either on its own motion or on the application of any of the parties, to consider the correctness of any order passed by the lower Court affecting the fee payable on the plaint or in any other proceeding in the lower Court and determine the proper fee payable thereon.
10. Another aspect of law which is of fundamental importance in a case like the present one is that the issue pertaining to valuation of the subject-matter of the suit, which in turn has direct relevance to the amount of the Court fee payable and the pecuniary jurisdiction of the Court, always gives rise to a mixed question of fact and law and therefore necessitates an enquiry as contemplated under Section 11(2) of the Act. Therefore, such an issue cannot by its very nature be decided as a preliminary issue within the meaning of Order 14, Rule 2(2) of the CPC which confers discretion in the Court to decide the issue of law only as a preliminary issue and that too, if it touches upon the jurisdiction of the Court or institution of such a suit is barred by any law.
11. On the other hand, Section 11(2) of the Act, like Order 14, Rule 2(2) of the CPC, does not confer mere discretion on the Court but it mandates that the issue of valuation of the subject-matter of the suit both for the purposes of Court fee and jurisdiction has to be decided before evidence is recorded. It is also to be borne in mind that once the issue of valuation is decided by the Trial Court in the manner provided under the Act, the remedy available to any aggrieved party against such an order will be only to raise grievance on this score is a Court of appeal as provided under Section 11(4)(a) of the Act. As a necessary consequence any remedy by way of preferring revision under Section 115 of the CPC cannot be said to be maintainable.
12. Before parting, it is appropriate to notice that the procedure provided under the Act is a special procedure for determining the issue relating to valuation of the subject-matter having bearing on Court fee payable and jurisdiction of the Court and it has an overriding effect over the procedure contained in the CPC on this specific aspect. It is so because, admittedly, the subject of civil procedure (Entry 13) is contained in the concurrent list of the Seventh Schedule of the Constitution of India and the present Act has been brought into force after obtaining assent of the President of India on 23-5-1998. Therefore, Article 254(2) of the Constitution of India comes into play which declares that:
Article 254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States.--
(1) XXX XXX XXX.
(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent list contains any provision repugnant to the provisions of an earlier la-v made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that state:
Provided.. . .
13. Sub-sections (2) and (5) of Section 11 of the Act, like Order 14, Rule 2(2) of the CPC, does not confer mere discretion rather it mandates that the issue Like that of valuation of the subject-matter of the suit, the Court fee payable and pecuniary jurisdiction of the Court has to be mandatorily decided before evidence is recorded affecting the objecting defendant on the merits of the claim. Admittedly, assent of the President to the said Act was obtained on 23-5-1988. Therefore, in view of Article 254(2) of the Constitution, the procedure proscribed for determination of valuation of the subject-matter of the suit, determination of Court fee payable and the pecuniary jurisdiction has to prevail over the provisions contained in Order 14, Rule 2(2) of the CPC.
14. Subject to the observations made above, the present revision petition is dismissed as not maintainable.