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2001 DIGILAW 264 (MAD)

Saroja Ammal v. Duraisamy and others

2001-02-27

D.MURUGESAN

body2001
ORDER: The petitioner in this civil revision petition is the plaintiff in unnumbered O.S.SR. No.111 of 1997 on the file of the learned District Munsif-cum-Judicial Magistrate, Tirukazhukundram. The petitioner filed the above suit for preliminary decree of partition of the suit properties into nine shares and allot one share to the plaintiff according to metes and bounds and considering good and bad soil and for other reliefs. The plaintiff for the purpose of court-fee, valued the suit at Rs.20,555.55 and paid the court-fee of Rs.200 under Sec.37(2) of the Tamil Nadu Court-Fees and Suits Valuation Act. The said plaint was rejected by the learned District Munsif cum Judicial Magistrate by order dated 23.7.1997 on the ground that the petitioner should pay the court-fee under Sec.37(1) of the Act instead of Sec.37(2). Having as found, the learned Judge granted seven days time to the petitioner to pay the deficit court-fee. Aggrieved by the said order, the present civil revision petition has been filed. 2. Mr.V.Raghavachari, learned counsel for the petitioner submitted that the order of the learned District Munsif in directing the petitioner/ plaintiff to pay court-fee under Sec.37(1) of the Act instead of accepting the plaint on the basis of the valuation and court-fee paid by the petitioner/ plaintiff on the basis of the valuation and court-fee paid by the petitioner/ plaintiff under Sec.37(2) of the Act is not correct. The learned counsel submitted that the reason adduced by the learned District Munsif for directing the petitioner/ plaintiff to pay the court-fee under Sec.37(1) of the Act is unsustainable since it is the specific case of the plaintiff in paragraph 7 of the plaint that she is and deemed to be in joint possession of the suit items and the said averments has to be decided only after the trial and the plaint itself cannot be rejected on the ground that the averments in the plaint do not reflect the joint possession being pleaded by the plaintiff. 3. In the order under revision, the learned District Munsif relied upon the averments made in paragraph 3 of the plaint wherein the plaintiff has stated that the plaintiff resided at item No.1 of the suit property till her marriage. 3. In the order under revision, the learned District Munsif relied upon the averments made in paragraph 3 of the plaint wherein the plaintiff has stated that the plaintiff resided at item No.1 of the suit property till her marriage. The learned Judge has also taken note that thereafter the plaintiff is living with her husband and she was getting the income from the suit property up to the year 1993 and thereafter she has not received any income from the suit property. Therefore, the learned District Munsif found that on the date the suit was filed, the plaintiff was not in possession and accordingly the learned Judge directed the plaintiff to pay the court-fee under Sec.37(1) of the Act. 4. The reason adduced by the learned District Munsif that the plaintiff was not in possession of the suit property on the date of filing of the suit cannot be decided even before the suit is taken on file and by an administrative direction on the basis of the averments made in the plaint. The learned Judge ought to have entertained the suit and given an opportunity to the plaintiff to sustain the claim that the plaintiff was in joint possession of the suit property and thereafter only ought to have come to the conclusion on the basis of such materials available either to proceed with the suit on the basis of the court-fee paid under Sec.37(2) or directing the plaintiff to pay the court-fee under Sec.37(1) within the period given by the learned Judge. In fact, this Court in a judgment reported in Ramaiah Thevar v. Shanmugavel Thevar and others, (1979)2 M.L.J. 142 , while considering a similar question has held that it becomes incumbent for the Court at the full-fledged trial of the suit, to consider the question as to whether there has been an actual ouster as pleaded by the defendants. If after the full-fledged trial, the Court comes to the conclusion that the plaintiffs case of joint possession in the plaint is not borne out by the evidence the course to be adopted is to dismiss the suit of the plaintiff, unless he amends the plaint suitably and pays the requisite court-fees under Sec.37(1) of the Act. If after the full-fledged trial, the Court comes to the conclusion that the plaintiffs case of joint possession in the plaint is not borne out by the evidence the course to be adopted is to dismiss the suit of the plaintiff, unless he amends the plaint suitably and pays the requisite court-fees under Sec.37(1) of the Act. The Court also held in such matters, it is not safe and advisable to decide the issue on a consideration of the pleadings alone without proper and sufficient materials pleaded before the Court. Therefore, in my considered view the learned Judge ought to have entertained the suit and ought to have decided the question of the sustainability on the basis of the court-fee paid under Sec.37(2) of the Act. I do not agree with the reasons given by the learned District Munsif cum Judicial Magistrate in directing the petitioner/ plaintiff to pay the court-fee under Sec.37(1) even before the same is taken on file and without giving any opportunity to the plaintiff to adduce his evidence to establish her joint possession. 5. In that view of the matter, this civil revision petition is allowed with a direction to the learned District Munsif to take the unnumbered O.S.SR. No.111 of 1997 on the file and decide the question of payment of court-fee as either under Sec.37(1) or Sec.37(2) after giving an opportunity to the petitioner/ plaintiff by way of letting in evidence in the suit. With the above direction, this civil revision petition is allowed. No costs.