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2012 DIGILAW 749 (AP)

Govind v. Shah VS Anila J. Shah

2012-08-22

ASHUTOSH MOHUNTA, G.KRISHNA MOHAN REDDY

body2012
Judgment : G. Krishna Mohan Reddy, J. 1. This appeal and C.C.C.A.No.38 of 2006 are preferred against judgment and decree passed in O.S.No.329 of 1999 dated 19.9.2005 on the file of the Court of Additional Metropolitan Sessions Judge for trial of communal offence cases-cum-VII Additional Metropolitan Sessions Judge-cum-XXI Additional Chief Judge, Red Hills, Nampally, Hyderabad, whereby and whereunder the suit filed for partition and separate possession of the properties scheduled therein and other reliefs was decreed in favour of the plaintiff. 2. C.C.C.A.No.38 of 2006 is preferred by the defendants 1 and 2 and C.C.C.A.No.225 of 2008 is preferred by the defendants 3 and 4 in the said suit. For the sake of convenience, we refer the parties as arrayed in the suit. 3. The question now involved in the appeal at this stage is as to whether the defendants are liable to pay court fee with reference to the pleas taken in the plaint with regards to the subject matter of the suit or with reference to the ultimate decision of the trial Court with regards to constructive or actual possession of the plaintiff over the plaint schedule properties. After deciding this, the appeal will finally be heard with regard to other aspects involved. 4. In fact, the plaintiff filed the suit against the defendants for partition of the plaint schedule movable and immovable properties into five equal shares and allotment of one share out of that to her and for costs and for mesne profits. The defendants 1 to 4 are younger and elder brothers of the plaintiff. 5. The claim of the plaintiff is that their father late Vallabhdas died intestate on 10.6.1990 leaving behind herself and the defendants as legal his legal heirs. The schedule property belonged to their father. By virtue of his death, herself and the defendants succeeded to the property as per law. It is also according to the plaintiff that she and her brothers became the co-parceners of the properties. It is further according to her that in spite of her requests, the defendants 1 to 4 did not come forward to effect the partition of the properties according to their shares. 6. The claim of the defendants is that the plaintiff got no right in the schedule properties. It is further according to her that in spite of her requests, the defendants 1 to 4 did not come forward to effect the partition of the properties according to their shares. 6. The claim of the defendants is that the plaintiff got no right in the schedule properties. During the lifetime of their father, the first of them filed a suit i.e. O.S.No.7 of 1963 on the file of the Court of I Additional Chief Judge, Hyderabad against their father, mother Smt. Anasuya Devi V.Shah and brothers for partition and separate possession of their joint family immovable properties, which ended in compromise by virtue of which, all their joint family properties were partitioned and each of them was allotted 1/6th share therein and accordingly each of them has been in possession of his or her allotted share. It is further according to them that at the time of the marriage of the plaintiff, which took place in the year 1969, she was given considerable gifts by reason of which she never demanded any rights in the properties of their father. It is further according to them that their mother Smt. Anasuya Devi V.Shah executed a Will on 30.9.1978 in which she bequeathed a sum of Rs.10,000/-to the plaintiff, which was paid by their father to the plaintiff. They further claim that their father executed his last will dated 7.1.1987 appointing the first of them (first defendant) as his executor bequeathing his 1/5th share in favour of his sons and grand children. They claim that accordingly the shares of their parents as bequeathed are being enjoyed. So, they totally refute the claim of the plaintiff. They further claim that under those circumstances, the plaintiff should have filed necessary court fee under Section 34(1) and not Section 34(2) of Andhra Pradesh Court Fees and Suits Valuation Act, 1956 (for short ‘the Act’) as was done by the plaintiff. 7. Various issues were framed in accordance with the pleas taken by the parties respectively. They further claim that under those circumstances, the plaintiff should have filed necessary court fee under Section 34(1) and not Section 34(2) of Andhra Pradesh Court Fees and Suits Valuation Act, 1956 (for short ‘the Act’) as was done by the plaintiff. 7. Various issues were framed in accordance with the pleas taken by the parties respectively. While disposing of the suit on contest, the trial Court observed basing upon the evidence recorded that never the plaintiff was in the actual or constructive possession of the properties and that she never derived income from any of the properties and therefore she should have paid advolarm court fee under Section 34(1) and not under Section 34(2) of the Act while granting the other reliefs prayed for and accordingly the plaintiff paid the court fee within stipulated time. 8. In C.C.C.A.No.38 of 2006, the defendants 1 and 2 paid the court fee in accordance with the observations made by the trial Court in that behalf. The defendants 3 and 4 who filed C.C.C.A.No.225 of 2008 paid only fixed court fee of Rs.200/-and the appeal was numbered subject to giving a decision about the payment of correct court fee at the time of hearing the appeal. Therefore this issue is taken up at the outset before considering the other issues in the appeals. 9. The defendants 3 and 4 would contend that they are liable to pay necessary court fee only subject to the pleas taken by the plaintiff, but not on the findings arrived at by the trial Court with regards to the joint possession of the plaintiff in the schedule properties either constructive or actual. Their counsel has drawn the attention of this Court to what is pleaded in the plaint that she got equal share in the properties of their father and she is in the constructive possession of the properties, by reason of which, in fact she was allowed to pay the fixed court fee of Rs.200/-under Section 34(2) of the Act at the outset. They assert that only the contents of the plaintiff are to be taken into consideration for the purpose of directing them to pay necessary court fee for admitting their appeal. In this context, they have placed reliance upon a decision in B.S. Malleshappa v. Koratagigere B.Shivalingappa ( AIR 2001 KAR. 384 ). 10. They assert that only the contents of the plaintiff are to be taken into consideration for the purpose of directing them to pay necessary court fee for admitting their appeal. In this context, they have placed reliance upon a decision in B.S. Malleshappa v. Koratagigere B.Shivalingappa ( AIR 2001 KAR. 384 ). 10. Challenging the claim of the defendants 3 and 4, learned counsel for the plaintiff would contend that by virtue of Section 11(2) of the Act, any aggrieved party to the suit has got right to question the court fee paid on the subject matter of the suit and all questions arising on such pleas shall be heard and decided before hearing the suit and if the court decides that on the subject matter of the suit correct court fee is not paid, the court can give necessary directions to the party concerned, which procedure is also to be followed when the matter is taken in appeal before a competent authority. He also claims that if the court fee as fixed is not paid within stipulated time, the plaint or the appeal, as the case may be, shall be rejected. 11. It is necessary to extract Section 11 and also Section 34 of the Act for proper appreciation of the question on hand. Section 11 of the Act enjoins; “Decision as to proper fee:-(1) (a) In every suit the Court shall, before ordering the plaint to be registered, decide on the allegation contained in the plaint and on the materials furnished by the plaintiff the proper fee payable thereon. (b) The decision of the Court under clause (a), regarding the proper fee payable shall be subject to review, from time to time, as occasion requires. (2) Any defendant may 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 the hearing of the suit as contemplated by Order XVIII in the First Schedule to the Code of Civil Procedure, 1908 (Central Act V of 1908). All questions arising on such pleas shall be heard and decided before the hearing of the suit as contemplated by Order XVIII in the First Schedule to the Code of Civil Procedure, 1908 (Central Act V of 1908). If the Court decides that the subject matter of the suit is not properly valued or that the fee paid is not sufficient, the Court shall fix a date before which the subject matter of the suit shall be valued in accordance with the Court’s decision and the deficit fee shall be paid. If within the time allowed, the subject matter of the suit is not valued in accordance with the Court’s decision or if the deficit fee is not paid, the plaint shall be rejected and the Court shall pass such order as it deems just regarding cost of the suit. 3(a) A Court of Appeal, in which an appeal is filed may, either of its own motion or on the application of any party, consider the correctness of any order passed by the Lower Court regarding the fee payable on the plaint or written statement or in any other proceeding in the lower court and determine the proper fee payable thereon”. Section 34 of the Act enjoins; Partition Suits:-(1) In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff who has been excluded from possession of such property, fee shall be computed on the market value of the movable property or three fourths of the market value of the immovable property, included in the plaintiff’s share. (2) In a suit for partition and separate possession of joint family property or property owned, jointly or in common, by a plaintiff who is in joint possession of such property, fee shall be paid at the following rates:- When the plaint is presented to (i) a District Munsiff’s Court: Rupees Fifty, (ii) a Subordinate Judge’s Court or a District Court: Rupees one hundred if the value of plaintiff’s share is less than Rs.10,000/-. Rupees two hundred if the value is not less than Rs.10,000/-. Rupees two hundred if the value is not less than Rs.10,000/-. (3) Where, in a suit falling under sub-section (1) or sub-section (2) the plaintiff or the defendant seeks also cancellation of decree or other document of the nature specified in Section 37, separate fee shall be payable on the relief of cancellation in the manner specified in that section”. 12. Here the language used in Section 11 in particular and so also Section 34 is very important. It is not in dispute that the question of payment of court fee in the matter is only subject to these provisions of law. It is emphatical that Section 11(1)(a) of the Act enjoins that in every suit the Court shall, before ordering the plaint to be registered, decide on the allegation contained in the plaint and on the materials furnished by the plaintiff the proper fee payable thereon. From this, it is clear that the Court has to decide on the allegations contained in the plaint and materials furnished by the plaintiff the proper fee payable. Section 11(b) enjoins that the court fee payable shall be subject to review from time to time as occasion requires. This clause is qualified by the previous clause. It does not specifically enjoin that the fee payable shall be subject to review on the basis of any findings given in the corresponding suit or appeal on the basis of evidence, as the case may be. Significantly, clause (2) of Section 11 gives right to any defendant to plead that the subject matter of the suit is not properly valued or that the court fee paid is not sufficient, whereas it further enjoins that questions arising on such pleas shall be heard and decided before the hearing of the suit as contemplated by Order XVIII in the First Schedule of CPC and if the Court decides that the subject matter of the suit is not properly valued or that the fee paid is not sufficient, the court shall direct the party concerned to pay necessary court fee as directed, failing which the plaint shall be rejected. Clause 3(a) is akin to clause (2), but with reference to the corresponding appeal. Significantly, the language used in this clause relates to payment of court fee only with reference to the plaint or written statement or any other proceeding in that behalf in the lower court. Clause 3(a) is akin to clause (2), but with reference to the corresponding appeal. Significantly, the language used in this clause relates to payment of court fee only with reference to the plaint or written statement or any other proceeding in that behalf in the lower court. Neither in clause (2) nor in clause (3)(a) also it is specified that the court fee is to be paid on the ultimate findings given in the suit or appeal on the basis of evidence, as the case may be. These clauses are also subject to clause 1(a). Thereby, either for the purpose of suit or for the purpose of appeal, only the pleadings made in the plaint or written statement are taken into consideration. The words employed in clause 3(a) i.e. “correctness of order passed in any other proceeding in the lower Court” cannot be meant that not only the plaint pleadings or written statement pleadings, but also the ultimate findings in the suit or the appeal shall also be taken into consideration for that purpose. These words are to be meant that the court fee is to be paid on the subject matter of the suit on the basis of any proceeding decided subject to the ambit of pleadings made in the plaint or written statement, as the case may be. Section 34 also speaks of levying court fee on the basis of plaint only. So this is in consonance with Section 11 in this context. 13. In B.S. Malleshappa’s case, similar question was considered with reference to Section 35(1), 35(2) and Section 11(4) of the Karnataka Court Fees and Suits Valuation Act (16 of 1958). In fact, Sections 11 and 35 of that Act are quite similar to Sections 11 and 34 of A.P. Act. Similar observation was made by the Karnataka High Court. The Karnataka High Court also observed: "Though sub-section (2) of Section 11 gives a statutory right to the defendant to raise objections to the adequacy of the Court fee paid by the plaintiff, the field of the investigation is confined practically to the determination of two points, viz., underestimation of the value of the subject-matter of the suit and the category under which it should fall for the purpose of Court fee. The section cannot be read as enabling the defendant, to challenge the plaint allegations for the purpose of determining the proper Court fee. The section cannot be read as enabling the defendant, to challenge the plaint allegations for the purpose of determining the proper Court fee. It is settled law that the allegations in the plaint alone are to be considered and not the statements made by the defendant in the written statement and the Act makes no change in this, But the Courts are entitled to determine the substance of the claim as distinguished from the form in which the reliefs were cast. The scope of investigation or inquiry under Section 11 after notice to defendant and on hearing his objection if any is limited to determining the nature of the suit on the basis of the plaint allegations and to see if there is any under-valuation of the subject-matter of the suit. Under the pretext of deciding questions of Court fee there cannot be a trial of the suit......". 14. These observations support the plea of the defendants 3 and 4 and does not support the plea of the plaintiff in the present context. When it is clear that the court fee is to be paid in the appeal subject to the pleadings taken in the plaint, the question of asking the defendants 3 and 4 to pay necessary court fee in conjunction with the ultimate findings of the trial Court in the same behalf does not arise at all. In consequence of this observation, the plaintiff and the defendants 1 and 2 are at liberty to move the concerned Court for the purpose of returning the amount of court fee paid by them subject to the findings of the trial Court. 15. Ultimately, the issue regarding the payment of court fee is disposed of accordingly with a direction to the parties to get ready for expeditious hearing of the main appeals.