Neelambal & another v. Gnanaselvam Thavapandian — 1995 DIGILAW 679 (MAD)

Judgment : The above revision petition has been filed under section 115 of the Code of Civil Procedure, against the order of the learned Subordinate Judge, Thanjavur, dated 17. 1995, in I.A.No.367 of 1995 in O S.No.231 of 1991, whereunder the learned Subordinate Judge overruling the objection of the petitioners (defendants 2 and 3 in the suit), came to the conclusion that the court-fee paid under section 37(2) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 (hereinafter referred to as “the Act”) is leg al, proper and sufficient. 2. Learned counsel for the petitioners relying upon the decisions in Ramaswami Aiyangar v. Rangachariar ( 1940 (1) MLJ. 32 ), Kumarasami, S.K. and 3 others v. S.R. Somasundaram and 2 others ( 1994 2 LW 646 ); Kasi Viswanathan v. Manickam Chettiar (77 L.W. 687); and Vembu Ammal v. Swaminathan (1986 I MLJ 105), vehemently contended that the order of the Court below is contrary to law and cannot be sustained, and that the Court below ought to have, according to the learned counsel, sustained the objection and held that the Court fee on the plaint in question ought to have been paid under section 37(1) of the Act and that, therefore, the suit cannot be said to have been properly valued and stamped for the purpose of the court-fee. 3. I have gone through the plaint filed in the Court below, a copy of which is made available in the typed set of papers of this revision petition. The plaintiff in the suit O.S.No.231 of 1991 on the file of the Court below has merely sought for a preliminary decree for partition in favour of the plaintiff (respondent herein) and for directing division of the suit properties into two halves and put the plaintiff in possession of her share of the suit properties within the time stipulated by Court and in case of failure to do so by the first defendant, to pass a final decree by appointing a Commissioner to divide the properties into moieties by metes and bounds and for convenient use and occupation and put the plaintiff in possession of her share through process of Court. The plaint averments also go to show that this is a suit pure and simplicitor one for partition. .4. The plaint averments also go to show that this is a suit pure and simplicitor one for partition. .4. The submission of the learned counsel for the petitioners is that inasmuch as the respondent-plaintiff is not in possession of some of the items of properties and that some items have already been alienated, the suit in so far as it relates to such items of properties atleast cannot be considered to be one for mere partition so as to attract payment of court-fee under section 37(2) of the Act. In Ramaswami Aiyengar’s case ( 1940(1) MLJ. 32 ) (supra) a Full Bench of this Court had an occasion to consider the issue relating to the nature of the suit for the purpose of payment of Court fee under the Court-fees Act, VII of 1890 (as amended in Madras). In my view, there is no comparison of the nature of the suit considered by the Full Bench to the case on hand. That was a case where even the relief sought for as prayer in the plaint was construed to involve setting aside of the earlier decrees passed to which the plaintiff had been an EO NOMINEE party. It was in such circumstances, the Full Bench has held that the plaintiff therein must be held to have impliedly asked for the cancellation of the decrees passed and therefore, must pay ad valorem court fee on the amount of the decree passed earlier. In Kasi Viswanathan’s case (77 LW. 687)(supra) as the learned Judge then was, had an occasion to consider the scope of section 37 of the Act in the context of the claim for Partition. As could be seen even from the head note of the report, the relief sought for therein involved setting aside of an earlier partition and the legality and validity of such earlier partition. The ratio of the said decision, therefore, will have no application to the case on hand. 5. In the case of Vembu Ammal (1986 I MLJ 105) (Supra), S. Swamikkannu, J. while considering the relevant scope of sub- sections (1) and (2) of section 37 of the Act, decided the case before him in the context of the relief sought for which involved setting aside of a preliminary decree passed in an earlier suit. 5. In the case of Vembu Ammal (1986 I MLJ 105) (Supra), S. Swamikkannu, J. while considering the relevant scope of sub- sections (1) and (2) of section 37 of the Act, decided the case before him in the context of the relief sought for which involved setting aside of a preliminary decree passed in an earlier suit. In Kumarasami’s case ( 1994 2 LW 646 ) cited supra, Srinivasan, J. had an occasion to eleborately consider the scope of section 37(2) of the Act by reviewing the case law on the subject. No doubt the Learned Judge observed that the Courts have always to take care to ensure that mere astuteness in drafting plaint does not stand in the way of Courts looking at the substance of the relief asked for and looking into the allegations in the plaint to see what is the substantive relief that is asked for. The Learned Judge also observed after adverting to the relevant case law on the subject that the question of Court-fee must be considered in the light of the allegations made in the plaint and the decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. After stating so much on the principles and on the facts and circumstances of the case before the learned Judge, it was held that the claim of the plaintff there in for payment of Court-fee under section 37(2) of the Act was not acceptable for the reason that the learned Judge found that the suit which was the subject matter of consideration in the said case was in substance one for setting aside a compromise decree in an earlier suit in O.S.No.37 of 1984, though the prayer was only for declaration of the shares. .6. On a careful consideration of the submissions of the Learned Counsel for the petitioners in the light of the decisions relied on by her, I am of the view that none of the decisions relied on for the petitioners before me, can be said to in any way help or support the plea on behalf of the petitioners. .6. On a careful consideration of the submissions of the Learned Counsel for the petitioners in the light of the decisions relied on by her, I am of the view that none of the decisions relied on for the petitioners before me, can be said to in any way help or support the plea on behalf of the petitioners. As noticed supra, those cases were decided in the context of the peculiar nature of the relief claimed therein involving either the setting aside of an earlier decree or earlier partition or compromise decree, unlike the case on hand, which is pure and simple, as pointed out earlier and on looking into the averments in the plaint as also the nature of the relief sought for, one for partition. The order of the learned trial Judge in this case rejecting the objection raised to the valuation of the suit given for the purposes of jurisdiction and Court-fee does not suffer, in my view, any patent error of law or perversity of approach. Apart from the fact that the conclusion arrived at by the learned trial Judge is well merited on the nature of the relief sought for in the plaint, the decision also does not involve any question of jurisdiction of the Court below to countenance the claim of the petitioners at this stage of the proceedings. 7. For all the reasons stated above, the revision petition fails and shall stand dismissed. The conclusions rendered by the trial Court as well as by this Court in this revision petition shall have no impact on the ultimate disposal of the claim made in the suit on merits.