Madras High Court
M/S Sri Balaji Intercontinental vs The Madras Purasawalkam Hindu on 21 February, 2008
Author: A.C.Arumugaperumal Adityan
Bench: A.C.Arumugaperumal Adityan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:21.02.2008 CORAM THE HONOURABLE Mr. JUSTICE A.C.ARUMUGAPERUMAL ADITYAN Civil Revision Petition (NPD) No.550 of 2008 and M.P.No1 of 2008 M/s Sri Balaji Intercontinental rep. By its Partner Ashok Kumar Morarka .... Petitioner Vs. The Madras Purasawalkam Hindu Janobakara Saswatha Nidhi Ltd.. rep.by its Managing Director .... Respondent This Civil revision petition is filed under Article 227 of the CPC, against order dated 11.10.2007 passed by the Additional District and Sessions Judge, Fast Track Court-V,Chennai in C.M.A.No.50 of 2007 confirming the fair and decretal order dated 29.12.2006 passed by the XV Assistant Judge, City Civil Court, Chennai made in O.S.No.1168 of 2003. For Petitioner : Mr.V.Bhiman Advocate For M/s Sampath Kumar Associates O R D E R
This revision petition has been directed against the Judgment in C.M.A.No.50 of 2007 in O.S.No.1168 of 2003 which had arisen out of the Judgment and decree in O.S.No.1168 of 2003 on the file of XV Assistant Judge,City Civil Court, Chennai. The learned XV Assistant Judge, City Civil Court, Chennai while answering the issue No.5 in O.S.No.1168 of 2003 had returned the plaint holding that from the averment in the written statement and also on the basis of the evidence let in on the side of the defendant, it is seen that a sum of Rs.2,40,47,259 is the amount due under the mortgages to the defendant and on that score, the plaintiff has to pay the additional Court fee and to present the plaint before the proper forum. Aggrieved by the findings of the learned XV Assistant Judge, City Civil Court, Chennai , the plaintiff in O.S.No.1168 of 2003 had preferred an appeal in C.M.A.No.50 of 2007 before the Additional District and Sessions Judge/fast Track Court-V, Chennai. The learned Additional District and Sessions Judge/fast Track Court-V, Chennai concurred with the view of the learned District Munsif, had dismissed C.M.A.No.50 of 2007 which necessitated the plaintiff to prefer this revision.
2. It is a well settled principle that Court fee is to be paid only on the basis of the relief asked for in the plaint by the plaintiff. The plaintiff has filed the suit in O.S.No.1168 of 2003 on the basis of three mortgages dated 30.8.1995,14.2.1996 and 12.6.1996 for redemption of the said mortgages. On the basis of the mortgage dated 30.8.1995, the mortgage money is for Rs.6,00,000/-, under the mortgage dated 14.2.1996, the mortgage amount is for Rs.3,00,000/- and as per the mortgage dated 12.6.1996, the mortgage amount is for Rs.3,00,000/-. According to the plaintiff, he had already paid the mortgage amount under the three mortgages to the tune of Rs.11,35,296/- and only a sum of Rs.3,30,507.48 remains to be paid.
3. The learned XV Assistant Judge, City Civil Court, Chennai while answering issue No.5, has observed that as per the contentions of the defendant in the written statement, the plaintiff has to pay a sum of Rs.2,40,47,259/- and hence the plaintiff has to pay the additional Court fee and to present the plaint before the proper forum. The learned Additional District Judge, after observing that the plaintiff has filed the suit under Order 34 Rule 1 of CPC under the three mortgages dated 30.8.1995,14.2.1996 and 12.6.1996and since the trial Court has come to a conclusion that it has no pecuniary jurisdiction to try the suit has returned the plaint as per the provisions under Order 7 Rule 10 of CPC. But the first appellate Court has not considered as to whether the plaintiff is liable to discharge the mortgage debt of Rs.2,40,47,259/- as stated by the learned XV Assistant Judge, City Civil Court, Chennai in O.S.No.1168 of 2003. For the relief asked for in the plaint, the plaintiff has paid the court fee as per the provisions contemplated under the Tamil Nadu Court Fees and Suits Valuation Act. On the basis of the pleadings in the written statement, I am of the view that the Court cannot direct the plaintiff to pay the additional Court fee for the relief which the plaintiff has not asked for in the plaint. The defendant has also not raised any counter claim for the said amount of Rs.2,40,47,259/- in his written statement because that is not the amount due under the suit mortgages dated 30.8.1995, 14.2.1996 and 12.6.1996.
4. The learned counsel appearing for the revision petitioner in support of his contention has placed his reliance in the ratio decidenti in Smt.Nandita Bose-v- Ratanlal Nahata(AIR 1987 Supreme Court, 1947) wherein the following principle has been enumerated :
"Under S.15 of the Code every plaint should be instituted in the Court of the lowest grade competent to try it and if the value of the suit was Rs.42,000/- only it had to be filed in the City Civil Court of Calcutta and not on the Original Side of the High Court. The principles which regulate the pecuniary jurisdiction of civil courts are well settled . Ordinarily, the valuation of a suit depends upon the reliefs claimed therein and the plaintiff's valuation in his plaint determines the Court in which it can be presented. It is also true that the plaintiff cannot invoke the jurisdiction of a court by either grossly over valuing or grossly under-valuing a suit."
For the same proposition of law, the learned counsel appearing for the revision petitioner would rely on a dictum in Abdulla Bin Ali-v-Galappa(1985)2 Supreme Court Cases 54) wherein the relevant observation of the Honourable Apex Court runs as follows:
"There is no denying the fact that the allegations, made in plaint decide the forum. The jurisdiction does not depend upon the defence taken by the defendants in the written statement. On a reading of the plaint as a whole it is evident that the plaintiffs- appellants had filed the suit giving rise to the present appeal treating the defendants as trespassers as they denied the title of the plaintiffs-appellants. Now a suit against the trespasser would lie only in the civil Court and not in the revenue Court."
Under such circumstances, I am of the view that the Judgment C.M.A.No.50 of 2007 passed by the learned Additional District and Sessions Judge/Fast Track Court-V,Chennai , is liable to be set aside.
5. In fine, the civil revision petition is allowed and the Judgment made in C.M.A.No.50 of 2007 passed by the learned Additional District and Sessions Judge/Fast Track Court-V, Chennai is hereby set aside. The trial Court is directed to dispose of O.S.No.1168 of 2003, after restoring the same on his file, on the basis of the available evidence, on merits,within a period of one month from the date of receipt of a copy of this order. No costs. Consequently, connected M.P.No.2 of 2008 is closed.
21.2.2008 Index:yes Internet:Yes sg To
1.The Additional District and Sessions Judge/Fast Track Court- V,Chennai.
2. The Section Officer, V.R.Section, High Court, Madras A.C.ARUMUGAPERUMAL ADITYAN,J sg C.R.P(NPD) No550/2008 21.02.2008