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2010 DIGILAW 4748 (MAD)

V. Sowrirajan v. Dhanam

2010-10-27

R.S.RAMANATHAN

body2010
Judgment :- 1. The defendant in O.S. No.133 of 2009 on the file of the District Munsif, Uthagamandalam is the revision petitioner. The respondent/ plaintiff filed the above suit for injunction stating that she perfected her title by adverse possession. 2. The revision petitioner after entering appearance filed I.A. No.95 of 2010 under Order 7, Rule 11 to reject the plaint stating that the plaintiff wantonly did not pray for declaration of her alleged title to the schedule mentioned property by adverse possession only with a view to avoid Court fees and if the prayer for adverse possession is sought for, the plaint will have to be valued, according to the market value, he has to pay the higher Court fee and therefore the plaintiff filed the suit for bare injunction without a prayer for declaration of title by valuing the suit notionally which is against the provisions of Tamil Nadu Court Fees and Suit Valuation Act, 1955. According to Section 27(a)(i) of the said act, any relief in respect of an immovable property has to be valued on the market value as per Section 7 of the Tamil Nadu Court Fees and Suit Valuation Act. It is further stated that no litigant is entitled to under value the suit so as to cause loss to the exchequer of State. The suit filed without paying proper and sufficient court fee is not maintainable and without appreciating the same, the petition was dismissed and against the same, this revision is filed by the defendant. 3. It is submitted by the learned counsel for the revision petitioner that before the lower court two grounds were taken by the revision petitioner namely that the suit for injunction without a prayer for declaration of title when the plaintiff based his claim on adverse possession is not maintainable and under Section 27(a)(i) of the Tamil Nadu Court Fees Act when an issue is framed regarding the plaintiffs title to the suit property or where the plaintiffs title to the suit property is denied, the suit has to be valued on one half of the market value of the suit property and the suit is valued at Rs.1,000/-and the lower court dismissed the application by giving finding on the first ground and has not answered the second ground regarding the valuation of the suit property as per Section 27(a)(i) of the Tamil Nadu Court Fees Act. 4. The lower court has rightlyheld that the suit cannot be rejected at this stage on the ground that the plaintiff has not prayed for declaration of title. The plaintiff has filed the suit on the basis of the possession of the suit property and he also claimed that he is in possession of the property for more than 12 years and perfected titled by adverse possession and he further stated that his possession is being disturbed by the revision petitioner and therefore the suit is filed for injunction. Hence there is no need for the plaintiff to pray for declaration of title and if the plaintiff is not able to prove his possession as alleged by him in the plaint and the defendant is able to prove his title and possession, the suit will be dismissed. As regards the next ground namely that the suit was not properly valued as per Section 27(a)(i) of the Tamil Nadu Court Fees Act is concerned, a reading of the affidavit did not disclose that any such plea has been taken as argued before this Court. It is only stated in the affidavit in para 5 that any relief in respect of an immovable property has to be valued on the market value of the same as per Section 7 of the Court Fees Act. No specific plea has been raised in the affidavit that as per Section 27(a) of the Act, the suit has not been properly valued. Further, no such ground has been taken that the lower court has not answered the issue regarding the court fee as per Section 27(a) of the Tamil Nadu Court Fees Act, though it was argued before the lower court. Nevertheless, I am of the opinion that the issue of payment of court fee on = of the market value as per Section 27(a)(ii) of the Tamil Nadu Court Fees Act will arise only when there is a pleading in the plaint that the defendant denied the title of the plaintiff to the suit property. A reading of the plaint would make it clear that there is no allegation about the denial of the title of the plaintiff by the defendant. In so far as Section 27(a)(ii) is concerned that can be decided after the statement is filed and an issue is framed regarding the plaintiffs title to the suit property. A reading of the plaint would make it clear that there is no allegation about the denial of the title of the plaintiff by the defendant. In so far as Section 27(a)(ii) is concerned that can be decided after the statement is filed and an issue is framed regarding the plaintiffs title to the suit property. Further as per Order 7, Rule 11B, the rejection of plaint will arise only when there is a finding by the Court about the under valuation of the plaint and a direction was given to the plaintiff to pay the deficit court fee and that direction was disobeyed by not paying the court fee. That situation will arise when an application is filed under Section 12 of the Tamil Nadu Court Fees Act to determine the market value of the property and if any finding is given by the court regarding the valuation and after such finding, if the plaintiff fails to pay the court fee, then the plaint is liable to be rejected as per Order 7, Rule 11B. In this case no such finding is given by the court regarding the under valuation. Therefore, there is no necessity for the lower court to give a finding regarding the court fee at this stage. However, if any petition is filed by the revision petitioner under Section 12 of the Court Fees Act, it is for the lower court to decide the same on merits and pass orders. 5. Hence, I am not inclined to interfere with the order passed by the court below. The Civil Revision Petition is dismissed accordingly. Consequently, connected M.P. is closed. No costs.