Madras High Court
Sundarrajan And Ors. vs Vellai Vinayagar Koil And Ors. on 28 August, 2000
Equivalent citations: AIR 2001 MADRAS 110, (2000) 3 MAD LJ 662
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
ORDER M. Karpagavinayagam, J.
1. The petitioners have filed this Civil Revision Petition against the fair and decretal orders passed on O.S.No. 295 of 1992 on the file of the Additional District Munsif, Tirukoilur dated 7-6-2000 dismissing the application filed by the petitioners in I.A.No. 494 of 1999 raising preliminary objection with reference to the inadequacy of Court-fee paid.
2. The short facts are these :--
(a) Vellai Vinayagar Koil Sri Balasubramania Swami Koil through its Executive Trustee filed a suit in O.S.No. 295 of 1992 on the file of the Additional District Munsif, Tirukoilur for declaration that the suit property belongs to the temple and for recovery of possession of the same after removing the superstructure and also for damages for use and occupation.
(b) The petitioners/defendants filed written statements raising various pleadings inclusive of the plea that the valuation of the Court-fee in the suit is not in consonance with the market value and therefore, the suit is beyond the Jurisdiction of the trial Court.
(c) When the trial commenced, two applications in I.A.Nos. 493 and 494 of 1999 were filed requesting the trial Court to raise additional issue with reference to the jurisdiction on the basis of the inadequacy of the Court-fees and to hold enquiry separately with regard to the said issue and accordingly, an enquiry was conducted and during the course of enquiry, Exs. B-1 to B-3 were marked by the defendants. After hearing the counsel for the parties, the trial Court by order dated 7-6-2000 overruled the objection and held that the valuation of Court-fee is correct and as such, the Court has jurisdiction to try the suit. This order is the subject-matter of challenge before this Court in this Civil Revision Petition by the petitioners/defendants.
3. When the Registry questioned maintainability of the Civil Revision Petition under Section 115 C.P.C., as there is no provision in the Madras Court-Fees and Suits Vauation Act or other statute which enables the petitioner to move the High Court by way of Revision on the matter of Court-fees payable on a plaint, on the strength of a decision of the Supreme Court In Rathnavarmaraja v. Smt. Vimla, the papers were represented by the counsel for the petitioners stating that the question of payment of Court-fee is not the matter in dispute and the question would relate to the pecuniary jurisdiction of the trial Court and therefore, the Civil Revision Petition is maintainable.
4. The Registry, having not satisfied with the endorsement made by the counsel for the petitioners, placed the papers before this Court to decide about the maintainability. This Court directed the Registry to number it and to post the same before this Court to enable this Court to hear the counsel for the petitioners both on the question of maintainability and on the merits of the order impugned. Accordingly, the Civil Revision Petition was numbered and posted before this Court.
5. The learned counsel for the petitioners is heard on both points.
6. It is submitted by the counsel for the petitioners that there is no material placed by the plaintiffs to prove that the suit property is an agricultural land, whereas the defendants/petitioners herein have marked three documents Exs. B-1 to B-3 which would estbalish that the property in dispute is a house site and is valued more than Rs. 2 Lakhs and therefore, the trial Court will have no pecuniary jurisdiction to try the suit.
7. In the light of the above submissions, the main contention of the counsel for the petitioners is that the valuation of the court-fees had not been done properly and the value of the land in question would be more and as such, the trial Court will have no jurisdiction.
8. Under those circumstances, let me decide as to the maintainability of the Revision.
9. In this context, it would be worthwhile to refer to some of the decisions decided on this point.
10. In Rathnavarmaraja v. Smt. Vimla, , it is held as follows (Paras 2 and 3) "The Court-fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. By recognising that the defendant was entitled to contest the valuation of the properties in dispute as if it were a matter in issue between him and the plaintiff and by entertaining the petition preferred by the defendant to the High Court in exercise of its revision jurisdiction against the order adjudging Court-fee payable on the plaint, all progress in the suit for trial, of the dispute on the merits has been effectively frustrated..... 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 relating to the Court-fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate.
.....
It is true by Section 19, the Act provides that for the purpose of deciding whether the subject-matter of the suit or other proceeding has been properly valued or not whether the fee paid is sufficient, the Court may consider it proper. The anxiety of the Legislature to collect Court-fee due from the litigant is manifest from the detailed provisions made in Chapter 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 the 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."
11. In G. Krishnamurthy v. Sarangapani, Hon'ble AR. Lakshmanan, J. (as he then was) would hold as follows :--
"The preliminary issue regarding court-fee is essential and the matter is between the Court and the suitor and the finding rendered by the Court cannot be said to have caused any prejudice to the defendants. As pointed out by learned counsel for the plaintiff, the revision under Section 115, C.P.C. is also not maintainable. The suit property is admittedly classified in the revenue records as agricultural land and it is assessed to revenue kist. The plaintiff has also adduced oral and documentary evidence to support his contentions. The market value of the property of any land which is assessed to the revenue records will be reckoned under the Court-fees and Suits Valuation Act. The valuation, therefore, as made in the plaint is perfectly tenable in law and calls for no interference."
12. These two decisions, in my view, would directly apply to the facts of the present case. The main objection raised by the petitioners in LA.No. 494 of 1999 is that as the court-fee was not correctly valued, the trial Court has no jurisdiction. As laid down in the above decisions, though the defendants would ask for enquiry with reference to the value of the court-fee payable on the plaint, the defendants cannot have any grievance against the order overruling the objection to get him entitled to invoke the revisional jurisdiction of the High Court on question whether the plaintiffs have paid adequate Court-fee on the plaint or not.
13. As noted above, whether proper court-fee is paid or not is a preliminary question between the plaintiffs and the State. Under those circumstances, the defendants cannot have any grievance claiming himself to be aggrieved. In view of the above, the Revision is not maintainable.
14. Having directed the office to number it for considering the Revision both on the question of maintainability and on the merits of the impugned order, it may be appropriate for this Court to go into the factual aspects as well as the reasonings of the impugned order.
15. The respondents/plaintiffs filed the suit in the year 1992 before the Additional District Munsif, Tirukoilur in O.S.No. 295 of 1992. On 25-11-1993, some of the defendants filed a written statement. The 6th defendant separately filed a written statement on 13-3-1997. Issues had been framed after hearing counsel for the parties on 25-5-1994. Again two applications had been filed to raise additional issue relating to the inadequacy of the Court-fee paid. Therefore, the issues framed earlier on 25-5-1994 were cancelled and fresh issues numbering about 12 were framed including the issue with reference to the improper valuation of the Court-fee on the plaint on 14-3-1997. The case was posted in the list on 14-11-1999. On the side of the plaintiffs, P.W.I was examined in chief. As requested by the counsel for the defendants, time was given and for cross-examination of P. W. 1, it was posted on 24-11-1999 and thereafter, on 2-12-1999. At that stage, the petitioners/defendants filed applications in I.A.Nos. 493 and 494 of 1999 seeking to hold enquiry with reference to the preliminary objection regarding non-payment of proper Court-fee and consequent lack of jurisdiction.
16. A counter had been filed on behalf of the plaintiffs in both these applications contending that the said applications were only filed to drag on the proceedings. However, the trial Court gave opportunity to the defendants to place materials with reference to the preliminary objection in order to decide the said issue separately. On behalf of the defendants, Exs. B-1 to B-3 were marked. Ex. B1 is a Mortgage Deed dated 5-12-1999 by the 4th defendant mortgaging the suit property with one Nataraj mentioning that value of the property would be Rs. 30/- per sq. ft. Exs. B-2 and B-3 Chittas dated 7-8-1997 and 7-1-2000 would relate to Survey No. 75/9 mentioning the property as 'naththam manai'. The trial Court rejected Exs. B-2 and B-3 on the ground that the property had to be valued only by taking into consideration the market value prevailing on the date of the suit, namely, 16-4-1992. The trial Court would also state that in Ex, B-1 dated 5-12-1988, it is mentioned as dry land ('punja'). In the light of the said reasonings, the trial Court rejected Exs. B-1 to B-3 and considered the averments made in the plaint wherein it is stated that it is an agricultural land and concluded that the plaint is properly valued and as such, the suit is maintainable.
17. On going through the documents, it is clear that the objection with reference to the valuation of the Court-fee should have been raised and decided as a preliminary issue only before the commencement of the trial. As pointed out earlier, the written statements were filed by the defendants on 25-11-1993 and 13-3-1997, Though there is reference is respect of non-payment of court-fee made in some paragraphs in the written statements, their main contention was that the property did not belong to the plaintiffs. As stated above, when the issues were framed on 25-5-1994 and subsequently on 14-3-1997, there was no plea that the issue relating to the improper valuation of court-fee had to be decided as a preliminary issue. These objections had been filed in I.A.Nos. 493 and 494 of 1999 only on 24-11-1999 and 2-12-1999 respectively, that too, after the chief examination of P.W. I was over. Thus, the intention of the defendants, as pointed out in the counter filed by the plaintiffs before the trial Court, to protract the proceedings somehow or other, is quite clear.
18. In-para 6 of the plaint, It is the specific statement of the plaintiffs that the suit property is a temple property and proper court-fee was paid under Sec. 25(a) of the Court-fees Act in accordance with G.O.Ms. No. 1574 Home Department dated 12-6-1972. When it is the specific case of the plaintiffs, as mentioned in the plaint, that the property is a ryotwari temple land and on the basis of which the court-fee had been paid, it is for the petitioner/defendants to establish that the correct court-fee had not been paid, as it is not a ryotwari land.
19. As correctly pointed out in the impugned order, Ex. B-1 Mortgage Deed dated 5-12-1988 cannot be considered to be the revenue record for the purpose of assessing the market value of the suit property. Exs. B-2 and B-3 Chittas dated 7-8-1997 and 7-1-2000 respectively would not help the petitioners, as the suit had been filed as early as 16-4-1992 and therefore, the trial Court is concerned only with the market value of the suit property prevailing on the date of suit.
20. When such is the factual situation, it cannot be contended that the market value is more than the value mentioned in the plaint. In this context, the following observation made in a decision reported in (Jugaraj v. Carborandum Universal Ltd.) (1968) 81 Mad LW 502 is quite relevant :--
"In a case of this kind, wherein the property has been characterised in the revenue records as ryotwari land, it would be difficult for a court of law to conjecture upon the nature of such land by taking into consideration the probabilities of its user in the future or its potentialities. In fact. Mr. Damodara Rao would say that it is highly improbable that the land in question would ever remain as ryotwari land in view of the fact that it is situated in the midst of factories and particularly it is an annexure to the case factory already worked by the respondent. It might be so, but, in my view, it would be difficult to take into consideration such potential use or probability while adjudging the issue whether the plaintiff has properly evaluated the suit land for the purpose of instituting an action for possession. There is a specific provision under the Madras Court Fees and Suits Valuations Act enabling the plaintiff to evaluate the suit ryotwari land at 30 times the survey assessment of the land. This the plaintiff has done. The accepted form of law is that the special excludes the general. Even the opening parentheses of Section 7(1) "Save as otherwise provided" provides a key to the interpretation of the Section. In the Instant case, such a provision has been made under Section 7(2)(a). I am, therefore, unable to accept the contention of the learned counsel for the petitioners that the other clauses, viz., Section 7(2)(g) of the Act can be pressed into service for the purpose of ascertainment of the Court-fee payable by the plaintiff."
21. The above observation, in my view, would certainly help the case of the plaintiffs, inasmuch as there are averments and the records referred to in the plaint would show that the suit property has been treated as agricultural lands, whereas the documents filed by the defendants cannot be considered to be the revenue records for the purpose of assessing the market value of the suit property as on the date of the suit.
22. Under those circumstances, I am of the view that this Civil Revision Petition is not sustainable both in law and on facts.
23. In the result, the Civil Revision Petition is dismissed. Consequently. C.M.P. No. 12153 of 2000 stands dismissed. Since I feel that the petitioners have abused the process of law by attempting to stall the progress of the suit by filing objection, that too at a belated stage before the trial Court as well as filing the Revision before this Court, I deem it fit to direct the petitioners to pay costs of Rs. 2,500/- to the plaintiffs within four weeks from this date.
24. Since the Revision is dismissed at the admission stage itself, the Registry is directed to send a copy of this order to the plaintiffs forthwith. The trial Court is directed to finish the trial of the suit as expeditiously as possible with giving any chance to the defendants to put further hurdle in the progress of the proceedings of the suit.