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2000 DIGILAW 766 (MAD)

G. Chockalingam v. M. Vasantha and Others

2000-08-04

V.KANAGARAJ

body2000
Judgment :- The Order of the Court was as follows : The first defendant in the suit has filed the above Civil Revision Petition against the fair and decretal order dated 11-10-1999 made in I.A. No. 252 of 1999 in O.S. No. 16 of 1997 by the Court of District Munsif, Devakkottai. 2. The history of the case is that the first respondent herein as the plaintiff has filed the suit against the petitioner and five others, who are shown as respondents 2 to 6 herein, for declaration to the effect that the will dated 12-11-1993 was the last will and testament of late Ganapathy Chettiar and consequently restraining the first defendant from in any manner implementing the recitals of the earlier will dated 5-6-1993 on ground that it had been revoked and for costs. 3. On the part of the first defendant, in his written statement, he would take up the plea of forgery for the will dated 12-11-1993 on account of the physical condition of the executant Ganapathy Chettiar since he was not in a position to move out of Madurai so as to execute the said will on 12-11-1993 at Karaikudi. Yet another plea has also been taken on the part of the petitioner/first defendant that the plaintiff has wrongly valued the plaint at Rs. 400/- paying the Court fee under S. 25(d) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 (hereinafter referred to as the 'Act'). 4. On the above said plea, the petitioner herein filed I.A. No. 252 of 1999 before the lower Court praying to frame the issue whether the suit property is valued properly and proper Court Fees is paid?' as a preliminary issue prior to settling the other issues thereby contending that to avoid payment of Court Fee on the market value of the properties compromised in the will dated 12-11-1993, the plaintiff has valued the same wrongly at Rs. 400/- paying the Court Fee of Rs. 30-50 ps. under S. 25(d) of the Act that the present market value of the suit properties is more than 25 lakhs of rupees and the plaintiff ought to have offered the correct market value of the suit properties and paid the Court Fees on such value. 5. 400/- paying the Court Fee of Rs. 30-50 ps. under S. 25(d) of the Act that the present market value of the suit properties is more than 25 lakhs of rupees and the plaintiff ought to have offered the correct market value of the suit properties and paid the Court Fees on such value. 5. The District Munsif, Devakkottai, as per her order dated 12-10-1999, having widely discussed the facts in issue and offering her own reasons, had ultimately dismissed the said petition filed by the first defendant, resulting in the petitioner coming forward to file the above civil revision petition. 6. When the above matter was taken up for consideration, on 14-7-2000, the learned counsel appearing for the petitioner was present and argued his case. On the other hand, neither the respondents nor their counsel was present so as to advance their part of arguments and hence this Court is left with no option but to decide the above matter in consideration of the facts and circumstances of the case as put forth and having regard to the materials placed on record and upon hearing the learned counsel for the petitioner. 7. The learned counsel for the petitioner would submit that S. 12(2) of the Act specifically mentions that all questions arising regarding valuation of the suit shall be heard and decided before evidence is recorded; that in the case in hand, the trial has not commenced; that issues have been framed and though the issue regarding valuation forms part of the issues for being heard and decided at the trial, this issue touching the maintainability of the suit could have been independently decided by the trial Court prior to deciding the other issues and would seek to allow the Civil Revision Petition as prayed for. 8. At the outset, it is not out of place to mention that the application has been filed under the general provision that is under S. 151 of the Code of Civil Procedure. Section 12(2) of the Act recites as follows : "(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 Court 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 cost of the suit." 9. A plain and ordinary meaning of S. 12(2) of the Act would connote that all questions arising on pleas of Court Fee shall be heard and decided before evidence is recorded and if the Court 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'. This Section is not only mandatory in nature but also a precondition has been imposed to the effect that all such questions shall be heard and decided before the evidence is recorded'. 10. This Section is not only mandatory in nature but also a precondition has been imposed to the effect that all such questions shall be heard and decided before the evidence is recorded'. 10. A cursory glance made into the order passed by the lower Court reveals that the lower Court remarking that the suit had been posted in the list and the petitioner/first defendant had been set ex parte and on an application filed by the petitioner to set aside the ex parte decree, the ex parte decree was set aside; that the petitioner participated in the proceedings; that the case is a part heard matter and at this juncture, the petitioner has come forward to raise the issue of Court Fee; that the question is a mixed question of law and fact in the circumstances of the case; that in accordance with Order 14, Rule 2 of Code of Civil Procedure only pure questions of law could be tried first, but in this case, the question being a mixed question of fact and law, the question need not be settled prior to setting the other questions and hence it need not be tried as a preliminary issue that too when the trial in the suit has commenced, has ultimately dismissed the said petition without costs. 11. Since it is reported that already the issue raised in the application for being heard and decided as a preliminary issue prior to setting the other issues forms part of the issues framed by the Court for determination in the suit and since the question raised being a mixed question of law and fact and further since it comes to be known that in the suit, the trial has already commenced, it is high time that the trial is carried on in the suit. This is not the stage at which the question raised by the petitioner could be tried as a preliminary issue. Hence, the petitioner, at this stage, is not entitled to pray for setting the issue raised as a preliminary issue without carrying on with the trial that has commenced. This is not the stage at which the question raised by the petitioner could be tried as a preliminary issue. Hence, the petitioner, at this stage, is not entitled to pray for setting the issue raised as a preliminary issue without carrying on with the trial that has commenced. For all these reasons, it is better that this issue is also decided along with the other issues framed in the trial and hence it is decided here that it is not at all necessary, at this juncture, to take up the issue raised as a preliminary issue and decide the same prior to deciding the other issues. 12. Though the question raised by the petitioner is a vital question, it has not been raised at the appropriate time in a fitting manner. The petitioner further becomes guilty of having been set ex parte in spite of the case having been posted in the list for trial. Having entertained such lethargy in prosecuting the suit in which he is said to have vital interest in coming forward with the plea to settle the issue of Court fee prior to settling the other issues when the case was under trial has not only lost credibility but also such of the claim runs counter to the dictum of law. Hence, there exists no valid or tangible reason for this Court to interfere with the impugned order of the Court below which suffers not from any illegality or infirmity warranting such interference. In result, the above Civil Revision Petition fails and the same is dismissed. No costs. The fair and decretal order dated 11-10-1999 made in I.A. No. 252 of 1999 in O.S. No. 16 of 1997 by the Court of District Munsif, Devakkottai is hereby confirmed. Consequently, C.M.P. No. 1170 of 2000 is also dismissed. Petition dismissed.