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2006 DIGILAW 3046 (MAD)

G. Anusuya v. Amirthavalli

2006-11-09

S.ASHOK KUMAR

body2006
Judgment :- The plaintiff is the revision petitioner. The suit was filed for a partition and separate possession of plaintiffs half share in the suit properties. The defendants filed a written statement contending that the court fee paid under Section 37(2) of the Act 14/55 is defective and deficient and court fee based on real value of the suit property should be directed to be paid on advolerum basis. Thus as per the mandatory provision of Section 12 of the Act, the issue regarding court fee should be tried preliminarily by framing necessary issues. Accepting the plea of the defendants, the learned District Judge, Nagapattinam framed 7 issues including the issue regarding court fee and posted the suit to 16.11.2004 for deciding the preliminary issue of court fee. Aggrieved by the same, the plaintiff has preferred this Revision. 2. The point for consideration is whether the issue relating to valuation of the property for the purpose of court fee should be decided as a preliminarily issue? Under Order 14 Rule 2 CPC only those issues of law relating to jurisdiction of the court or the bar tot he suit created by any law alone should be tried as a preliminarily issue. In support of the said contention, the learned counsel for the revision petitioner pressed into service a judgment of this Court in A. Manivannan and others Vs. Sivaraj and others, reported in (2001) 3 MLJ 403 , wherein this Court held as follows:- "In the case on hand, the petitioner had really not stated how the valuation is incorrect and in any event, it had been raised at a belated stage as per Sec.12(2) of the Court Fees Act. So he cannot pray for trial of this issue as a preliminary issue. Order 14. Rule 2, CPC gives the court the power to deal with only two kinds of issues as preliminary issues and that too only if they are issues of law. The issue relating to valuation is not one such and on this ground also the order is not liable to be revised." 3. Order 14. Rule 2, CPC gives the court the power to deal with only two kinds of issues as preliminary issues and that too only if they are issues of law. The issue relating to valuation is not one such and on this ground also the order is not liable to be revised." 3. Though under Order 14 Rule 2 CPC the valuation and payment of court fee is not specifically mentioned as an issue to be decided as a preliminary issue, Section 12(2) of the Court Fees and Suit Valuation Act comes into play, according to which if a defendant raises a dispute regarding valuation of the suit property or court fee paid by the plaintiff and all questions arising on such pleas shall be heard as preliminarily issues and no discretion is left with the Court. In support of proposition, the learned counsel for the respondents relied on the another decision of this Court reported in 2002 (2) CTC 513 (V.R. Gopalakrishnan Andiammal). In the said decision it has been held that, "13. There is also a provision in the Tamil Nadu Court Fees and Suits Valuation Act, 1955 viz., Section 12which lays down that the Court shall decide on the materials and allegations available in the Plaint, the property court fee payable thereon. Section 12(2) of the Act reads thus:- "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 Courts decision and the deficit fee shall be paid. 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 Courts 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 According to the above provision, all questions arising as such pleads shall be heard and hence no discretion is vested with the Court. If on the basis of the materials and allegations contained in the plaint, the court comes to the conclusion that the suit has not been properly valued or that the fee paid is not sufficient, the court can call upon the plaintiff to amend the plaint and also pay the deficit court fee. If the plaintiff fails to do that, the Court shall reject the plaint and pass appropriate orders. Once the Court decides that the subject mater of the suit has not been properly valued or that the court fee paid is not sufficient, the court has no option except to fix a date and call upon the plaintiff to comply the defect viz., by amending the plaint and also by paying necessary court fee. It has to be noticed that in this Section, the word "shall" has been employed as against the word "may" that occurs in Order 14, Rule 2, CPC. Of course, it is the settled legal position that the question of valuation must be considered in the light of the allegations 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 and further all the material allegations contained in the plaint should be construed an taken as a whole. It is the substance and not the form matters (Vide Neelavathi V. N. Natarajan, 1980 SC 691 and Tara Devi V. Thaku Radha Krishna Mhaaraj, AIR 1987 SC 2085 ). 14. It is the substance and not the form matters (Vide Neelavathi V. N. Natarajan, 1980 SC 691 and Tara Devi V. Thaku Radha Krishna Mhaaraj, AIR 1987 SC 2085 ). 14. There appears to be some conflict between the provisions in CC (ie) Order 14 Rule 2 when read with Section 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act with reference to deciding the pecuniary jurisdiction of the Court. Suppose, in a given case, the defendant comes forward with an application requesting the court to decide an issue relating to valuation of the suit property or the payment of court fee as a preliminary issue, the Court may applying the proviso in Order 14, Rule 2, decide to consider along with other issues and not a s a preliminary issue. Then the defendant may file an application to consider the issue as per the provisions of Section 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act, then the court will have no discretion and it has to consider the same. The Tamil Nadu Court Fees and Suits Valuation Act is a substantial law while CPC is a procedural law. The substantial law will prevail over the procedural code and consequently, it follows whenever the defendant files an application requesting the Court to decide the issue of valuation of the suit property or the payment of court fee and all questions arising on such pleas as a preliminary issue, the Court has to necessarily consider as per the provisions of Section 12 (2) of the Tamil Nadu Court Fees and Suits Valuation Act. Not in all cases where the defendant has disputed in the written statement, the valuation of the suit property or contended that the suit property has not been properly valued, the court has to consider it as a preliminary issue. Only where the defendant makes an application, the Court is bound to consider under Section 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act." 4. The above decision squarely applies to the facts of this case. While Code of Civil Procedure is a procedural law, Tamil Nadu Court Fees and Suit Valuation Act, 1955 is a substantial law and substantial law always prevails over the Procedural Code. Further, a perusal of the order would show that in this case no evidence was recorded by either side. While Code of Civil Procedure is a procedural law, Tamil Nadu Court Fees and Suit Valuation Act, 1955 is a substantial law and substantial law always prevails over the Procedural Code. Further, a perusal of the order would show that in this case no evidence was recorded by either side. Hence the leaned District Judge rightly adjourned the suit for deciding the court fee as the preliminary issue and no error or infirmity can be attached to the said order. 5. In the result, the Revision is dismissed. Consequently, connected CMP is also dismissed. No costs.