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2009 DIGILAW 4429 (MAD)

Mitra & Another v. S. Sulakshna & Another

2009-10-24

M.VENUGOPAL

body2009
Judgment :- 1. The Petitioners/Plaintiffs have filed the Civil Revision Petition as against the Order dated 7. 2007 made in the unnumbered Suit/Plaint in O.S.SR. NO.2719 of 2007 passed by the learned Principal District Judge, Chengleput. 2. The learned Principle District Judge, Chengleput has passed Order on 7. 2007 in the unnumbered Plaint in O.S.SR. No.2719 of 2007 which runs as follows: “The suit is filed on the basis of the Plaint document No.5 which is a sale deed dated 23.09.2004 purchased in the name of the 2nd plaintiff-Visalashi. On that basis the Suit ought to have been filed for possession of the property described in the schedule in document No.5, instead the plaintiffs have come forward with the Suit for partition which is not correct. As such the plaintiffs are directed to pay the requisite Court fee on the market value of the schedule mentioned property described in document No.5, namely Rs.15 Lakhs as detailed in Para-24 of the Plaint as per the provision of Section 30 of Tamil Nadu Court Fees Act instead of paying Court fee u/S.37 (2) of Court Fees Act. Time for payment of Court fee four weeks Hence returned. Sd/- P.D.J 7. 2007 3. It inspires from the typeset of papers that the original Plaint in the above said unnumbered Suit has been returned by the learned Principal District Judge on 12/4/2007 with the following endorsement: Returned: (i) How Partition Suit is maintainable to be stated? (ii) Blanks in the Plaint as well as duplicate Plaint to be filled up and attested. Time 1 month Sd/- Principal District Judge, Chengalpattu. 4. For the said return, the learned counsel for the Revision petitioners/plaintiffs has made the following endorsement on 11/6/2007 which runs as follows: “Since the Suit is arising out of a Joint Development agreement the frame of the Suit is perfectly in Order. Similar Suit have been filed and Orders obtained in High Court, Madras. If the Registry has any doubt it may be posted before Court for maintainability. Blanks in the Plaint duly filled up Complied with and represented.” Sd/-19.06.2007 Counsel for plaintiffs 5. Again on 11/6/2007, the office of the learned Principal District Judge Chengleput has made the office note which is extracted as follows: “The Counsel for plaintiff filed a Suit before this Court on 12/4/2007 and the same was returned on 12/4/2007 for the reason “How the Suit is maintainable”. Again on 11/6/2007, the office of the learned Principal District Judge Chengleput has made the office note which is extracted as follows: “The Counsel for plaintiff filed a Suit before this Court on 12/4/2007 and the same was returned on 12/4/2007 for the reason “How the Suit is maintainable”. The Suit is re-presented before this Court today (11.06.2007) stating “the same is arising out of a Joint Development Agreement and the framing of the Suit is perfectly in order. If any doubt place it in open Court.” In this connection it is submitted the plaintiff and the first defendant did not enter into any Joint Development Agreement or without a written contract the premises was developed. Moreover, the plaintiff sought for partition in the A and B schedule properties because of misunderstanding. For Orders:” 6. Based on the said office note, the matter has been directed to be called in open Court by the learned Principal District Judge Chengleput. On 15/6/2007 and later the matter has been adjourned to 22/6/2007. On 22.06.2007 the learned Principal District judge, Chengleput has heard the Revision petitioners/plaintiffs counsel and posted the impugned order in question. 7. According to the learned Counsel for the revision petitioners, the learned Principal District judge, Chengleput, ought to have taken into account that a Court cannot call upon the plaintiffs to pay the Court-fee under Section 30 of the Tamil Nadu Court Fees and Suit Valuation Act, 1955. 7. According to the learned Counsel for the revision petitioners, the learned Principal District judge, Chengleput, ought to have taken into account that a Court cannot call upon the plaintiffs to pay the Court-fee under Section 30 of the Tamil Nadu Court Fees and Suit Valuation Act, 1955. In as much as in a Suit for Partition, the Court-fee payable is only under Section 37 (1) or 37 (2) of the Act and therefore, the demand for payment of additional Court fee as per Section 30 of the Tamil Nadu Court Fees and Suit Valuation Act, 1955 is not sustainable and untenable both on facts and in law and moreover, the learned Principal District Judge ought to have accepted the averments made in the Plaint and should have numbered the Suit on the basis of averments contained therein and it is not for the Court to substitute its conclusion in regard to the averments projected in the Plaint and in the present case, the learned Principal District Judge has proceeded to rely on the sale deed namely document No.5 executed by the first respondent/first defendants acting through a Power Agent and has determined the value of the share of the revision petitioners/plaintiffs at Rs.15 lakhs and directed them to pay the Court fees which is not correct perse in the eye of law and that apart the Revision petitioners/plaintiffs cannot be compelled to pray for a relief which they have not sought for in the Plaint, etc. and these materials aspects of the matter have not been looked into in a proper perspective, which has resulted in substantial and material injury to the revision petitioners and added further, the settled position of law is that the Court fee has to be paid on the basis of averments made in the Plaint, and written statements and in short, the learned Principal District Judge, Chengleput, has proceeded on surmises and suppositions which need to be corrected by this Court in the revisional jurisdiction and therefore , prays for allowing the Civil Revision Petition. 8. This Court has paid its anxious considerations to the arguments advanced on the side of the revision petitioners/plaintiffs and noticed the same. 9. 8. This Court has paid its anxious considerations to the arguments advanced on the side of the revision petitioners/plaintiffs and noticed the same. 9. However, the learned counsel for the first respondent/first defendant submits before this Court that the revision petitioners/plaintiffs are not in possession of the Suit property and therefore, they have to pay Court-fee on the plaint as per Section 37(1) of the Tamil Nadu Court fees and Suit Valuation Act, 1955. 10. The learned counsel for the second respondent/second defendant supports the impugned Order of the learned Principal District Judge in all aspects. 11. A perusal of the Plaint filed by the revision petitioners/plaintiffs indicate that the revision petitioners/plaintiffs in the Plaint pray for a judgment and decree to be passed against the respondents/defendants in regard to the division of the Schedule property into three shares by metes and bounds in the following manner: “(i) Division of the Schedule ‘B’ mentioned property forming part of Schedule ‘A’ into three shares and allocate schedule ‘B’. Item-1 in favour of the 2nd plaintiff with built-up area of 1,650 sq.ft, in ground floor together with an undivided share of 1,300 sq.ft. In “A” schedule with a right to use the common area and common amenities as mentioned in Schedule ‘B’ item-1. (ii) Division of the first floor and allocate with the built-up area of 1,250 sq.ft in First floor rear portion together with an undivided share of 840 sq.ft. to the second defendant with a common amenities as mentioned in Schedule ‘B’ item 2. (iii) Divisions of the front portion First floor built-up area of 920 sq.ft. with proportionate 516 sq.ft. undivided share to the first defendants with common area and common amenities as described in Schedule “B” item in the Plaint Schedule. (b) For appointment of an Advocate commissioner to effect division of the suit property, as described in the Schedule hereunder, in the manner indicated as above, (c) such further or other reliefs, and (d) Cost of the Suit. 12. (b) For appointment of an Advocate commissioner to effect division of the suit property, as described in the Schedule hereunder, in the manner indicated as above, (c) such further or other reliefs, and (d) Cost of the Suit. 12. Besides the above, in the cause of action paragraph (23) of the Plaint its inter alia mentioned that the cause of action for filing of the Suit has arisen when the first revision petitioner/first plaintiff and the first respondent/first defendant along with his father negotiated the premises for promotion and development of the property at their Adambakkam office at No.6/1, 3rd Street, 1 Cross, E.B. Colony, Adambakkam, Chennai-88 in Corporation Division 153-A. The first revision petitioner/first plaintiff and the first respondent/first defendants had discussion and meeting for effecting implementation project and on various dates, namely 111. 2005, 111. 2005,3. 2005 has made payments from his Bank Account held in State Bank of Saurashtra, Adambakkam, Chennai-8, etc 13. Significantly, it is also averred among other things that the first respondent/first defendant has executed a Sale Deed dated 24.09.2004, registered as document No.2565 of 2004, at the Sub-Registrar Office, Alandur in favour of the second revision petitioner/second plaintiff conveying the undivided interest of 1,300 sq.ft. with a right to construct a residential deluxe Apartment in the first floor over and above the Ground floor and further that the first floor has been completed by the first plaintiff and the first defendant and the first defendant has elected to retain the first floor front portion thereby allowing the petitioners/plaintiffs to occupy the entire ground floor in lieu of the cost of construction incurred by the plaintiffs for promotion and development of the property. 14. In support of the contention that allegations in the Plaint can only be the basis in regard to the payment of requisite Court fee on Plaint, the learned Counsel for the revision petitioners/plaintiffs cited the decision of the honourable Supreme Court in Neelavathi and others v. N. Natrajan and others, AIR 1980 SC 691 , wherein it was held that “Allegations in Plaint as only basis and all material allegations in Plaint should be construed and taken as a whole.” 15. She also relies on another decision in the case of Ouseph’s son Kuriyakkatt Chacko v. Ummerkkutty’s daughter Oliyantakath Avis Summa and others, AIR 1967 Kerala 176 (V 54 C73) whereby and where under it is held that Section 37(1) of the Kerala Court-Fees and Suits Valuation Act applies only if the plea is that plaintiff is excluded from possession of property and mere exclusion from enjoyment of receipt of income from property or even exclusive use of property by co-sharer does not attract Section 37(1), but only Section 37 (2) of the Act. 16. Further on the said contention, the learned counsel relied on the decision of this Court in N. Ramachandran v. Munisamy and six others, 1998 (1) CTC 560 , wherein it has been held that Court fee has to be paid based on allegations in Plaint and earlier partition deed which is sought to be reopened was never acted upon the Court-fee has to be paid based on averments in Plaint only un-influenced by averments in written statement and hence petitioner is liable to pay Court-fee only under Section 37(2) of the Tamil Nadu Court Fees and Suit Valuation Act, 1955. 17. Another decision of this Court in V.R. Gopalakrishnan v. Andiammal, 2002 (2) CTC 513 , is relied on by the learned counsel for the revision petitioners/Plaintiffs to the effect that a Court has to hear issue regarding valuation of suit property or payment of Court-fee as preliminary one if defendant files independent Application to that effect and not otherwise and once such Application is filed, the Court has no discretion and shall be heard as preliminary issue. 18. It is useful to refer to Section 12 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955 which runs as follows: 12. Decision as to proper fee in other Courts. – In every suit instituted in any Court other than the High Court, the Courts shall, before ordering the Plaint to be registered, decide on the materials and allegations contained in the Plaint and on the materials contained in the statement, if any, filed under Section 10 the proper fee payable thereon, the decision being however subject to review, further review and correction in the manner specified in the succeeding sub-sections. (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. (3) A defendant added after issues have been framed on the merits of the claim may, in the written statement filed by him 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, and if the Court finds that the subject-matter of the Suit has not been properly valued or that the fee paid is not sufficient, the Court shall follow the procedure laid in sub-section (2). Explanation. – Nothing in this sub-section shall apply to a defendant added as a successor or a representative-in-interest of a defendant who was on record before issues were framed on the merits of the claim and who had an opportunity to file a written statement pleading that the subject-matter of the Suit was not properly valued or that the fee paid was not sufficient. 4 (a) Whenever a case comes up before a Court of Appeal, it shall be lawful for the Court, either of its own motion or on the application of any of the parties, to consider the correctness of any order passed by the lower Court affecting the fee payable on the Plaint or in any other proceeding in the lower Court and determine the proper fee payable thereon. Explanation. – A case shall be deemed to come before a Court of Appeal even if the Appeal relates only to a part of the subject-matter of the Suit. (b) If the Court of Appeal decides that the fee paid in the lower Court is not sufficient, the Court shall required the party liable to pay the deficit fee within such time as may be fixed by it. (C) If the deficit fee is not paid within the time fixed and the default is in respect of a relief which has been dismissed by the lower Court and which the appellant seeks in Appeal, the Appeal shall be dismissed, but if the default is in respect of a relief which has been decreed by the lower Court, the deficit fee shall be recoverable as it were an arrear of land revenue. (d) If the fee paid in the lower Court is in excess, the Court shall direct the refund of the excess to the party who is entitled to it. (5) All questions as to value for the purpose of determining the jurisdiction of Court arising on the written statement of a defendant shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. Explanation: In this Section, the expression “merits of the claim” refers to matters which arise for determination in the Suit, not being matters relating to the frame of the Suit, mis-joinder of parties and cause of action, the jurisdiction of the Court to entertain or try the Suit or the fee payable but inclusive of matters arising on pleas of res judicata, limitation and the like.” 19. Be that as it may, Section 12 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955, also speaks of “Decision as to proper fee in other Courts”. Be that as it may, Section 12 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955, also speaks of “Decision as to proper fee in other Courts”. It is to be noted that the term ‘plead’ in Section 12(2) of the Act is wider and the same is not confined to written statements and as a result defendant can raise his or her objection either by the written statement or by a subsequent Petition before evidence is recorded as per decision in S.Raju Gramani v. Srinivasa Gramani, 1958 (1) MLJ 308 . 20. Added further, sub-sections (2) and (3) of Section 12 of the Act provides for a statutory right to a defendant to raise objections in regard to adequacy of Court-fee paid by the petitioners/plaintiffs. Indeed, the defendants may not be interested in regard to the collection of proper Court fee and the issue of payment of Court-fee is a matter essentially concerned between the Government and the party who is liable to pay the appropriate Court-fee. 21. Undoubtedly, with regard to the adequacy of payment of Court fee or otherwise in a Plaint can be taken up as a preliminary issue by the Trial Court and in this regard, if evidence is required to be let in, the Trial Court is bound to provide necessary opportunity to the respective parties to let in appropriate oral and documentary evidence depending upon the facts and circumstances of the case. 22. In the present case, admittedly respondents/defendants have not entered appearance and even at threshold, before numbering of the Plaint, the learned Principal District Judge, Chegleput, has passed the impugned order, which has been challenged in the present Revision on behalf of the revision petitioners. 23. It is needless to point out that the only allegation in the Plaint will form the basis in regard to the payment of necessary Court-fee by a party to a Suit for partition and possession. The allegations in Plaint has to be taken as a whole. It is also a well settled principle of law that either pleas taken in the written statement or the final decision of the Suit to be taken on merits will not be a guiding factor in regard to the question of computation of appropriate Court-fee in the matter in issue. 24. It is also a well settled principle of law that either pleas taken in the written statement or the final decision of the Suit to be taken on merits will not be a guiding factor in regard to the question of computation of appropriate Court-fee in the matter in issue. 24. On a careful, consideration of respective contentions, without going into the merits of the matter this Court is of the considered view that there is no impediment in regard to the numbering of the Plaint/Suit filed by the revision petitioners/plaintiffs before the learned Principal District Judge Chengleput, and therefore, this Court on the basis of Equity, Fair play, good conscience and as a matter of prudence, directs the learned Principal District Judge Chengleput, to number the Plaint in S.R. No.2719 of 2007 pending on his file within a period of ten days from the date of receipt of a copy of this order and after numbering of the Suit the learned Principle District Judge Chengleput, shall order notice to the respondents/defendants and the respondents/defendants shall file the written statement at the earliest and upon receiving the written statements and the reply statement if any to be filed by the revision petitioners/plaintiffs, then it is open to the learned Judge, Chengleput to take up the issue in regard to the maintainability of Suit and also in regard to the issue of payment of adequacy of Court-fee paid on the Plaint and further directed to frame issues in this regard as a preliminary one and to dispose of the same at the earliest, by providing reasonable opportunities to both parties to let in oral and documentary evidence in the manner known to law and in accordance with law. 25. In fine, Civil Revision Petition is disposed of with the above directions. Under the circumstances there shall be no order as to costs in this Revision.