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2005 DIGILAW 579 (MAD)

Sathyanarayana Gupta v. Rajasubramania Gupta

2005-04-01

S.SARDAR ZACKRIA HUSSAIN

body2005
Judgment :- The third defendant in O.S.No.157 of 1996 on the file of the Additional Sub Court, Tindivanam is the revision petitioner. The revision is filed against the dismissal of I.A.No.69 of 2002 filed to try the issue with regard to payment of Court Fee as preliminary issue as per order dated 30.10.2003. 2. The respondent/plaintiff filed the suit for declaration and possession of the suit properties from the defendants 1 to 3 and also for mesne profits. The plaintiff and the third defendant are the sons of defendants 1 and 2. In the plaint, it is averred that the suit house bearing door No.434 situated in Jawaharlal Nehru Street, Tindivanam, which was owned by the plaintiff's grandmother Kumudhavallithayar Ammal, was given to the plaintiff, in which there are three shops, in front of the house, bearing door Nos.432, 433 and 435 and out of which, two shops are facing on the south and the third shop is facing on the north. The plaintiff's paternal grandmother Kumudhavallithayar Ammal, as per Will, bequeathed shop bearing door No.432 to the first defendant and the shop bearing door No.433 to the third defendant. The shop bearing door No.435 was given to her deceased son Krishnamoorthi as per settlement deed, who bequeathed the said shop to the plaintiff under a Will and therefore, according to the plaintiff, as per the Will of his paternal grandmother Kumudhavallithayar Ammal, the suit house bearing door No.434, Jawaharlal Nehru Street, Tindivanam was given to the plaintiff and she was also given the shop bearing door No.435 situated in front of the house facing north by his paternal uncle Krishnamoorthy by a separate Will. 3. The plaintiff initially filed the suit in the Sub Court, Tindivanam, in which, the suit has been taken on file in O.S.No.155 of 1988. In the suit O.S.No.155 of 1988, the relief sought for in the plaint has been valued at Rs.20,000/- for which the plaintiff paid Court fee of Rs.1,500.50 under Section 25(a) of the Tamil Nadu Court Fees and Suit Valuation Act. Such valuation of the suit property was challenged in the written statement. Subsequently, the above suit has been transferred to the District Munsif Court, Tindivanam since the jurisdiction of the District Munsif Court was enhanced to Rs.30,000/- and the same has been taken on file in O.S.No.848 of 1995. 4. Such valuation of the suit property was challenged in the written statement. Subsequently, the above suit has been transferred to the District Munsif Court, Tindivanam since the jurisdiction of the District Munsif Court was enhanced to Rs.30,000/- and the same has been taken on file in O.S.No.848 of 1995. 4. The Principal District Munsif Court, Tindivanam tried the issue with regard to the payment of Court fees as preliminary issue and as per order dated 23.4.1996, the Principal District Munsif Court, Tindivanam, considering Ex.A-1 sale deed executed to the plaintiff's grand mother Kumudhavallithayar Ammal by Kavilakshmi Ammal on 7.9.1938; Ex.B-1 sale deed dated 16.8.1988; Ex.B-2, written statement filed in O.S.No.580 of 1983 and Ex.B-3 Valuation Report for the suit property of the Civil Engineer; and further, taking into consideration that the suit property is old building and the value of the site(mokid) is Rs.53,560/- and on that basis recorded finding that since the value of the suit property is more than Rs.50,000/-, the District Munsif Court, Tindivanam has no pecuniary jurisdiction to try the suit and returned the plaint. 5. After such return and on representation, valuing the suit property at Rs.60,000/-, the suit was taken on file in the Sub Court, Tindivanam in O.S.No.157 of 1996. The petition I.A.No.69 of 2002 was filed to try the issue regarding payment of Court fees as preliminary issue, in which, the Sub Court, Tindivanam, not satisfied with the case of the defendant and also observing that the suit is pending from 1988, however, recorded finding that the Sub Court has got pecuniary jurisdiction and only to delay the proceedings, the petition, subject matter of this revision, was filed and accordingly dismissed the said petition, which order is challenged in this revision. 6. The learned counsel for the petitioner/third defendant submitted that the order of the Principal District Munsif in O.S.No.848 of 1995 dated 25.4.1996 with regard to the value of the suit property is, not less than Rs.50,000/- and no finding is given with regard to exact value of the suit property. 6. The learned counsel for the petitioner/third defendant submitted that the order of the Principal District Munsif in O.S.No.848 of 1995 dated 25.4.1996 with regard to the value of the suit property is, not less than Rs.50,000/- and no finding is given with regard to exact value of the suit property. It is further submitted that the decision relied on by the Sub Court in V.R.Gopalakrishnan – vs. - Andiammal reported in 2002(2) C.T.C. 513 is not applicable to the facts of the case, in that the plea with regard to the value of the suit property has been raised in the written statement and as such, there have been triable issue with regard to Court Fee even before framing of issues. The learned counsel also argued that despite the fact that in the enquiry before the District Munsif in O.S.No.848 of 1995, a Licensed Surveyor and Civil Engineer, who valued the suit property at Rs.11,50,000/-, was also examined as witness(D.W.2) and report was also marked as Exhibit (Ex.R-3), the proper value of the suit property had not been determined for the purpose of payment of court fee. The learned counsel also relied on the following decisions:- (1) Solaiammal(died) and another – vs. - Rajarathinam and others reported in 2003-4 Law Weekly 698 in which this Court has held that the delay in filing application to determine the value of the suit as a preliminary issue does not take away the jurisdiction of the trial Court. The Court should keep in mind the substance to ascertain the actual relief sought for. (2) V.R.Gopalakrishnan – vs. - Andiammal reported in 2002(2) CTC 513 , in which this Court has observed that all disputes regarding valuation of the suit property shall be heard as preliminary issue and determined on the basis of allegations made in the plaint and materials contained in the plaint. 7. The learned counsel for the respondent/plaintiff argued that inasmuch as the suit was originally filed in Sub Court, Tindivanam in O.S.No.155 of 1988, the market value as on that date is to be taken into consideration and as averred in the plaint. 7. The learned counsel for the respondent/plaintiff argued that inasmuch as the suit was originally filed in Sub Court, Tindivanam in O.S.No.155 of 1988, the market value as on that date is to be taken into consideration and as averred in the plaint. However, after enquiry before the District Munsif in O.S.No.848 of 1995 and as per the directions of the District Munsif, on return of the plaint that the suit property will be more than the value of Rs.50,000/-, it was represented before the Sub Court, valuing the suit property at Rs.60,000/- and as such, to delay the proceedings, the petition in I.A.No.69 of 2002 has been filed by the third defendant and the same is dismissed, in that it was found by the District Munsif that the property is more than the value of Rs.50,000/- and the Sub Court has got unlimited pecuniary jurisdiction more than Rs.30,000/-. Now it is stated that, since the pecuniary jurisdiction of the District Munsif Court has been enhanced to Rs.1,00,000/- after passing of the order, subject matter of this revision, the suit has been retransferred to the District Munsif Court and the same is taken on file as O.S.No.207 of 2004. So, according to the learned counsel, the suit property has been correctly valued at Rs.60,000/- on return of plaint as per order in O.S.No.848 of 1995. 8. The learned counsel for the respondent/plaintiff further contended that inasmuch as already the District Munsif Court in O.S.No.848 of 1995 with regard to the value of the suit property after enquiry has valued the suit property as not less than Rs.50,000/- and accordingly returned the plaint and on return it was represented before the Sub Court, wherein the suit property was valued at Rs.60,000/- and the said order dated 24.4.1996 has become final and therefore, the petition in I.A.No.69 of 2002, subject matter of revision is barred by res judicata. In support of such view, the learned counsel relied on the decision of the Hon'ble Supreme Court in Y.B.Patil and others – vs. - Y.L.Patil reported in A.I.R. 1977 Supreme Court 392, wherein it is observed thus:- "Principles of res judicata can be invoked not only in separate subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding." Further, the learned counsel for the respondent/plaintiff also submitted that revision will not lie against the decision of the Court with regard to the Court fee payable in the plaint. The learned counsel for the respondent/plaintiff relied on the following decisions:- (1) Sri Rathnavarmaraja – vs. - Smt.Vimla reported in 1961 Supreme Court 1299, in which the Hon'ble Supreme Court held thus:- "Whether proper court-fee is paid on a plaint is primarily a question between the plaintiff and the State. The jurisdiction in revision exercised by the High Court under Section 115 of the Code of Civil Procedure is strictly conditioned by classes (a) to (c) thereof. The defendant who may believe and even honestly, that proper court-fee has not been paid by the plaintiff has still no right to move the superior courts by appeal or in revision against the order adjudging payment of court-fee payable on the plaint." (2) Neelavathi and others – vs. - N.Natarajan and others reported in AIR 1980 Supreme Court 691, in which, the Hon'ble Supreme Court had occasion to consider with regard to computation of court fees and has held thus:- "It is a settled law that the question of court fee must be considered in the light of the allegation made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. All the material allegations contained in the plaint should be construed and taken as a whole." 9. The suit house is situated in Jawaharlal Nehru Steet, Tindivanam and in front of the house there are three shops bearing door Nos.432, 433 and 435 and the suit property was valued in the year 1988 at Rs.20,000/-. The suit was originally filed for declaration, possession and mesne profits from the defendants and was taken on file in O.S.No.155 of 1988 in Sub Court, Tindivanam. Thereafter, since pecuniary jurisdiction of the District Munsif Court was enhanced, the suit was transferred to the District Munsif Court, Tindivanam and taken on file in O.S.No.848 of 1995. The suit was originally filed for declaration, possession and mesne profits from the defendants and was taken on file in O.S.No.155 of 1988 in Sub Court, Tindivanam. Thereafter, since pecuniary jurisdiction of the District Munsif Court was enhanced, the suit was transferred to the District Munsif Court, Tindivanam and taken on file in O.S.No.848 of 1995. When the suit was pending in the District Munsif Court, Tindivanam, as per the objection raised with regard to the value of the suit property at the instance of the defendant, the suit property was valued by the qualified Building Licensed Surveyor and Civil Engineer, in which the value of the vacant site is mentioned as Rs.53,560/- and the rear building value of the extent of 2728 square feet at the rate of Rs.20/- per square foot and arrived at Rs.5,45,600/-. The value of the building in the main terraced building has been arrived at Rs.5,44,988.00 and totally the value of the property, according to the said Engineer was Rs.11,50,000/-. As rightly argued for the plaintiff, such value cannot be said to be proper, in view of the fact that the suit was originally filed in the year 1988 and the value of the suit property was arrived in the year 1995-96 during the enquiry before the District Munsif Court, Tindivanam, where the suit was pending in O.S.No.848 of 1995. However, since the value of the site of the suit property is more than the pecuniary jurisdiction of the District Munsif Court, the District Munsif, Tindivanam ordered to represent the same in the proper Court and accordingly, the suit was represented valuing at Rs.60,000/- in the Sub Court, Tindivanam, which was taken on file as O.S.No.157 of 1996 and thereafter again the defendant filed petition I.A.No.69 of 2002, subject matter of this revision objecting the value of the suit property. The Subordinate Judge, Tindivanam observing that the suit is pending from 1988 and the petition is filed only to delay the proceeding, dismissed the said petition. Again it appears, the suit O.S.No.157 of 1996 has been retransferred to the District Munsif Court, Tindivanam on the enhancement of pecuniary jurisdiction upto Rs.1,00,000/- and it is now pending in the District Munsif Court, Tindivanam as O.S.No.207 of 2004. 10. Again it appears, the suit O.S.No.157 of 1996 has been retransferred to the District Munsif Court, Tindivanam on the enhancement of pecuniary jurisdiction upto Rs.1,00,000/- and it is now pending in the District Munsif Court, Tindivanam as O.S.No.207 of 2004. 10. Therefore, considering the fact that the value of building site(mokid) at Rs.53,560/- as per the valuation report filed by the Building Licensed Surveyor and Civil Engineer, at the instance of the defendant and on that basis the suit was represented in the Sub Court valuing at Rs.60,000/- wherein written statement was also filed, it is clear that the petition I.A.No.69 of 2002 subject matter of this revision is filed only to delay the proceedings. The suit property has been valued when the suit was filed in 1988 originally in Sub Court, Tindivanam, which was subsequently transferred to the District Munsif Court, Tindivanam, since the pecuniary jurisdiction of the District Munsif Court was raised to Rs.30,000/- and since the value of the suit property was objected to by the third defendant, on return of the plaint as per order of the District Munsif, Tindivanam, it was represented in the Sub Court, Tindivanam valuing the suit property at Rs.60,000/- and as such, there is no necessity to find out as to whether the Court fee paid is proper and the matter is between the plaintiff and the State as held by the Hon'ble Supreme Court in 1961 Supreme Court 1299 (cited supra). 11. Further, as rightly argued by the learned counsel for the respondent/plaintiff, already the issue has been decided by the District Munsif Court and on that basis, the suit was represented in Sub Court, Tindivanam valuing the property at Rs.60,000/-. Therefore, considering all these aspects, the Sub Court, Tindivanam dismissed the petition and such order does not call for any interference. 12. In the result, in view of the discussions made above, the Civil Revision Petition fails and the same is dismissed, confirming the order dated 30.10.2003 in I.A.No.69 of 2002 in O.S.No.157 of 1996 passed by the Additional Sub Court, Tindivanam. No costs. Consequently, the connected petition C.M.P.No.19778 of 2003 is closed.