Research › Search › Judgment

Madras High Court · body

2011 DIGILAW 4215 (MAD)

P. B. Kasee Sah v. P. T. Hiru Sah

2011-09-30

B.RAJENDRAN, R.BANUMATHI

body2011
JUDGMENT R.BANUMATHI, J. ( 1. ) O.S.A. No. 312 of 2011 is preferred against the order in A. No. 2033 of 2011 whereby the learned single Judge declined to frame five additional issues but framed only two additional issues. O.S.A. No. 313 of 2011 is preferred against the order in A. No. 2034 of 2011 in Tr.C.S. No. 948 of 2007 declining to take up the issue of Court fee as preliminary issue. ( 2. ) RELEVANT facts, which are necessary for disposal of these appeals are as follows: The Appellant-Kasi Sah has filed the suit C.S. No. 286 of 2006 on the Original Side of High Court, Madras for partition of "A" to "C" schedule properties into three shares and allot one such share to the Plaintiff. The respondent has filed O.S. No. 3387 of 2007 on the file of City Civil Court Chennai seeking for a decree for mandatory injunction directing the Appellant to deliver possession of the suit "B" schedule property forming part of "A" schedule property under the occupation of the appellant ? New No. 38, Iyyah Mudali Street, Chintadripet, Chennai-600 002 and other reliefs. Resisting the said suit, appellant has filed written statement setting out the defences. The said suit O.S. No. 3387 of 2007 on the file of VII Assistant Judge, City Civil Court, Chennai has been transferred to Original Side of High Court and renumbered as Tr.C.S. No. 948 of 2007. ( 3. ) IN the said suit, the appellant has filed two applications - A. Nos. 2033 of 2011 to frame the additional issues. Earlier, in Transfer C.S. No. 948 of 2007, five issues were framed. A. No. 2033 of 2011 was filed by the appellant praying to frame the following additional issues. "(1) Whether a mere suit for mandatory injunction without declaration of title is maintainable under Section 34 of the Specific Relief Act? (2)When the plaintiff himself had admitted that his title to the suit properties had been denied by the defendant, whether the valuation of the suit notionally is Rs. 1,000/- is correct under Section 27 (c) of the Tamil Nadu Court Fees and Suits Valuation Act? (3)When the suit was not one to enforce any specific contract, whether the valuation of the suit under Section 27 (c) of the Court Fees Act is correct? 1,000/- is correct under Section 27 (c) of the Tamil Nadu Court Fees and Suits Valuation Act? (3)When the suit was not one to enforce any specific contract, whether the valuation of the suit under Section 27 (c) of the Court Fees Act is correct? (4)Whether the plaintiff should value the suit property on the market value on the basis of the allegations made by him in the written statement filed to C.S. No. 286 of 2006? (5)Whether a suit for mandatory injunction is maintainable especially when the relief of such mandatory injunction amounts to recovery of possession of the suit property" ( 4. ) OBSERVING that all 5 issues sought to be raised fall under two categories, the learned single Judge partly allowed application A. No. 2033 of 2011 framing the following two issues: "(a) Whether the valuation of prayer (a) in Tr.C.S. No. 948 of 2007 is actually a prayer for recovery of possession and whether the nominal valuation by describing the prayer as one for mandatory injunction, is permissible under Section 27 (c) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955? (b)Whether the prayer (a) in Tr.C.S. No.948 of 2007 is properly valued and proper Court fee paid or not" Another application ? A. No. 2034 of 2011 was filed to try the suit on the preliminary issue relating to payment of the correct Court fee on the reliefs sought for by the respondent in the said suit. Insofar as A. No. 2034 of 2011, the learned single Judge held that the dispute with regard to valuation of the property and the correctness of the Court fee could be tried along with the other issues. ( 5. ) BEING aggrieved by the refusal to frame relevant additional issues and also declining to take up the issue regarding the valuation of the suit and payment of Court fee as preliminary issues, the appellant has preferred these appeals. ( 6. ) MR. S. Subbiah, learned counsel for Appellant has submitted that when specific plea was raised that the suit for mandatory injunction directing the Appellant to deliver possession of "B" schedule property is not maintainable, the learned Judge ought to have framed the issues on the basis of pleadings of the parties. ( 6. ) MR. S. Subbiah, learned counsel for Appellant has submitted that when specific plea was raised that the suit for mandatory injunction directing the Appellant to deliver possession of "B" schedule property is not maintainable, the learned Judge ought to have framed the issues on the basis of pleadings of the parties. It was further submitted that the suit prayer relates to recovery of possession of the property and without seeking the relief of declaration the suit is not maintainable and the learned Judge ought to have framed additional issues on the basis of the pleadings raised by both parties. We have heard Mr. Nagu Shah, learned counsel appearing for the respondent. ( 7. ) IN Tr. C.S. No. 948 of 2007, Appellant has filed written statement inter alia contending that without seeking for declaration of his title to "A" schedule property, the suit for mandatory injunction directing to deliver possession of "B" schedule is not at all maintainable. According to appellant, when he is in exclusive possession and enjoyment of the suit property, there cannot be a mere suit for mandatory injunction as, the recovery of possession could not be equivalent to decree for mandatory injunction. ( 8. ) IN the written statement in Tr. C.S. No. 948 of 2007, appellant has raised the specific plea that without seeking for declaration of his exclusive title to the suit "A" schedule property, the suit for mandatory injunction for possession of "B" schedule property is not maintainable. When such specific plea was raised, relevant issue ought to have been framed. The object of an issue is to bring down the evidence, arguments and decision to a particular question so that there may be no doubt as to what the dispute is. Issues are framed for arriving at right decision of the case and to pin-point the real and substantial points of difference. When specific plea was raised regarding maintainability of suit for mandatory injunction for possession, additional issue should reflect the pleadings so raised. By a perusal of the additional issues framed, we find they do not reflect the pleadings raised by the appellant. Considering the pleadings in Transfer C.S. No. 948 of 2007, we feel it appropriate to frame the following two additional issues: (1)Whether a mere suit for mandatory injunction without declaration of title is maintainable under Section 34 of the Specific Relief Act? Considering the pleadings in Transfer C.S. No. 948 of 2007, we feel it appropriate to frame the following two additional issues: (1)Whether a mere suit for mandatory injunction without declaration of title is maintainable under Section 34 of the Specific Relief Act? (2) Whether a suit for mandatory injunction is maintainable especially when the relief of such mandatory injunction amounts to recovery of possession of the suit "B" schedule property" ( 9. ) BEFORE we proceed to consider the appeal O.S.A. No. 313 of 2011, we need to mention the objections raised by the learned counsel for Appellant regarding the observations of the learned Judge which according to the learned counsel for Appellant would amounts to expression of opinion on the merits of the matter. While considering the question whether the additional issue regarding maintainability of the suit for mandatory injunction without declaration of title, in Paragraph No. 11 of his order, the learned Judge proceeded to observe that ".... If in the suit for partition, the property is held to be a self acquired property not liable for partition, then the plaintiff in Tr.C.S. No. 948 of 2007 may be entitled to a mandatory injunction or recovery of possession as the case may be. If these properties are held to be a joint family property, the prayer for mandatory injunction would automatically go. As a matter of fact, if this prayer for mandatory injunction or recovery of possession had been made by way of counter claim in the written statement in C.S. Nos. 268 of 2006, there would have been no scope for raising this additional issue at all". In our considered view, while considering the question of framing additional issue, the learned Judge ought not to have expressed his opinion on the merits of the matter and the above findings are ordered to be eschewed. The trial of the suit is to proceed unfluenced by any of those findings. ( 10. ) O.S.A. No. 313 of 2011 ? Insofar as question of hearing and correctness of valuation and question of Court fee, contention of Appellant is that question of correctness of Court fee paid has to be tried as preliminary issue. The trial of the suit is to proceed unfluenced by any of those findings. ( 10. ) O.S.A. No. 313 of 2011 ? Insofar as question of hearing and correctness of valuation and question of Court fee, contention of Appellant is that question of correctness of Court fee paid has to be tried as preliminary issue. Learned counsel for Appellant has submitted that the suit being one for possession, Court fee should have been paid under Section 25 (a) of Tamil Nadu Court Fees and Suits Valuation Act, 1955 and while so, the Court fee was paid under Section 27 (c) of the Act. Learned counsel for Appellant would further submit that under Section 12(2) of Tamil Nadu Court Fees and Suits Valuation Act, all questions arising on the plea relating to the question regarding the subject matter of the suit whether it has been properly valued or not or that the fee paid was not sufficient, such question arising on the plea has to be heard as preliminary issue and decided before the evidence is recorded. It was further submitted that as per Section 12(2) of the Act, the said question has to be decided as a preliminary issue. In support of his contention, the learned counsel for appellant placed reliance upon V.R. Gopalakrishnan v. Andiammal 2002 (2) CTC 513 : LNIND 2002 Mad 28 : (2002) 1 MLJ 728 . Learned counsel appearing for respondent has submitted that under Order 14, Rule 2 C.P.C. discretion is always vested with the Court whether to take up the issue as preliminary issue or not and when the learned Judge has directed that the issue regarding valuation to be decided along with the suit, the same cannot be interfered with. ( 11. ) ORDER 14, Rule 2 C.P.C. deals with settlement of issues and determination of suit on issues of law or on issues agreed upon. As per ORDER 14, Rule 2 C.P.C, Court may try any issue as preliminary issue when it relates to: (a) jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force. As per ORDER 14, Rule 2 C.P.C, a discretion is vested with the Court to try the issue as to jurisdiction or statutory bar to the suit as a preliminary issue. As per ORDER 14, Rule 2 C.P.C, a discretion is vested with the Court to try the issue as to jurisdiction or statutory bar to the suit as a preliminary issue. In appropriate cases, Court may decline to try the issue as to jurisdiction or to statutory bar to the suit as preliminary issue if it considers expedient to do so. ( 12. ) OF course, as per Section 12(2) of Tamil Nadu Court Fees and Suits Valuation Act, when the defendant has disputed in the written statement the valuation of the suit property or contended that the suit has not been properly valued, the Court has to consider it as a preliminary issue. But not in all cases where the defendant has disputed in the written statement, the valuation of the suit property, the Court need to consider the issue as a preliminary issue. There should be harmonious reading of Order 14 , Rules 1 and 2 C.P.C. and Section 13(2) of Tamil Nadu Court Fees and Suits Valuation Act. After all, the questions resolving the dispute regarding valuation is for the purpose of seeing whether the suit has been properly valued and whether the suit within the pecuniary jurisdiction of the Court. Lest, if the suit property is under valued and in such cases if the property is correctly valued, the Court may not have pecuniary jurisdiction to try the suit. Tr. C.S. No. 948 of 2007 has been transferred from the City Civil Court, Chennai to the High Court. There is no limit for pecuniary jurisdiction of the High Court, Madras to try the suit. In such facts and circumstances of the case, the question regarding valuation and correctness of the Court fees need not be determined as a preliminary issue. Learned Judge has rightly held that the issue regarding valuation and correctness of Court fee could be tried along with the other issues. It is also pertinent to note that Tr. C.S. No. 948 of 2007 was transferred to the High Court way back in 2007; but the application to try the issue regarding Court fee was filed only in 2011. On that score also, the learned Judge has rightly declined to try the issue of Court fee payable as preliminary issue. ( 13. ) IN the result, O.S.A. No. 312 of 2011 is partly allowed. On that score also, the learned Judge has rightly declined to try the issue of Court fee payable as preliminary issue. ( 13. ) IN the result, O.S.A. No. 312 of 2011 is partly allowed. The following two additional issues are framed: (1) Whether a mere suit for mandatory injunction without declaration of title is maintainable under Section 34 of the Specific Relief Act? (2) Whether a suit for mandatory injunction is maintainable especially when the relief of such mandatory injunction amounts to recovery of possession of the suit "B" schedule property? O.S.A. No. 313 of 2011 is dismissed. Consequently, connected M.Ps. are closed. No costs.