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2013 DIGILAW 1848 (MAD)

Mrs. v. R. Maragatham VS Mrs. A. Dhanalakshmi

2013-04-30

P.R.SHIVAKUMAR

body2013
JUDGMENT 1. The defendant in the Original Suit is the appellant in the second appeal. The respondent herein filed O.S.No.578/1998 on the file of the Sub Court, Coimbatore for the relief of specific performance based on the suit agreement for sale dated 28.05.1995. Since the pecuniary jurisdiction of the civil courts came to be altered by Tamil Nadu Act 1 of 2004, the said suit was transferred to the file of the Principal District Munsif, Coimbatore and re-numbered as O.S.No.4273/2004. The same was made over to the II Additional District Munsif for trial and disposal in accordance with law. The learned trial judge, namely the II Additional District Munsif, Coimbatore decreed the suit granting the relief of specific performance by judgment and decree dated 23.11.2007. The said decree of the trial court was challenged by the appellant herein/defendant by filing an appeal A.S.No.23/2008 on the file of the Sub Court, Coimbatore. The same was made over to the learned II Additional Subordinate Judge, Coimbatore. The learned lower appellate judge (II Additional Subordinate Judge, Coimbatore) by judgment and decree dated 18.08.2008 dismissed the said appeal without cost confirming the decree passed by the trial court. As against the above said decree of the lower appellate court, the present second appeal has been preferred by the appellant herein/defendant on various grounds set out in the memorandum of second appeal. 2. The respondent herein/plaintiff filed the original suit praying for the relief of specific performance directing the appellant herein/defendant to execute a sale deed after receiving a sum of Rs.50,000/- being the balance sale consideration payable under the suit agreement for sale dated 28.05.1995. The respondent herein/plaintiff had made the said prayer in the suit based on the plaint averments, which are in brief as follows: The appellant herein/defendant entered into an agreement with the respondent herein/plaintiff on 28.05.1995 agreeing to sell an extent of 4.28 acres of land comprised in S.Nos.108/5 and 109/7(part) in Vadavalli village. The total sale consideration of the said land was fixed at Rs.84,00,000/- and a sum of Rs.3,00,000/-was paid as advance on the date of agreement. The total amount of sale consideration was arrived at on the understanding that an extent of 28 cents had to be set apart for roads and passages. The total sale consideration of the said land was fixed at Rs.84,00,000/- and a sum of Rs.3,00,000/-was paid as advance on the date of agreement. The total amount of sale consideration was arrived at on the understanding that an extent of 28 cents had to be set apart for roads and passages. Thus the balance extent of 4.00 acres alone should be taken into account for the purpose of computing the sale consideration at the rate of Rs.21,000/- per cent and the total sale consideration was fixed at Rs.84,00,000/-. Out of the above said sum of Rs.84,00,000/-, the respondent/plaintiff paid a sum of Rs.42,00,000/- and got two acres of land conveyed in favour of various persons nominated by the respondent/plaintiff under five sale deeds executed by the appellant herein/defendant in part performance of the suit agreement for sale. Out of the balance amount of sale consideration of Rs.42,00,000/- referable to the remaining 2.00 acres of land, the respondent/plaintiff paid a total sum of Rs.41,50,000/- on various dates leaving only a sum of Rs.50,000/-as the balance amount of consideration to be paid by the plaintiff. Though the respondent/plaintiff was ready and willing to perform her part of the agreement to get the sale transaction completed, the appellant/defendant wanted to wriggle out of the sale agreement in respect of the balance extent of 2.00 acres of land and refused to execute sale deed in favour of nominees of the respondent/plaintiff when demanded by the respondent/plaintiff. Since the appellant/defendant was hurriedly making attempts to sell the property to third parties, the plaintiff was constrained to file a suit in O.S.No.1693/1997 on the file of the District Munsif, Coimbatore for a permanent injunction not to alienate the suit properties in favour of third parties. Since the respondent/plaintiff was advised to file a comprehensive suit for specific performance before a competent court, an application in I.A.No.643/1998 under Order XXIII Rule 1(3) CPC seeking permission to withdraw the said suit with liberty to file a fresh suit for appropriate relief was filed. The said interlocutory application was allowed and thereafter the respondent/plaintiff has filed the present suit for the relief of specific performance. 3. The said interlocutory application was allowed and thereafter the respondent/plaintiff has filed the present suit for the relief of specific performance. 3. While making a prayer for specific performance directing conveyance of the suit property to the respondent/plaintiff or their nominees by executing sufficient instruments of sale, the respondent/plaintiff valued the relief of specific performance at Rs.50,000/-, which amount according to her, was the balance amount of sale consideration payable by the respondent/plaintiff and paid a court fee of Rs.3,750/-. In view of the fact that the suit was valued at Rs.50,000/-, the suit came to be filed before the Sub Court, Coimbatore, since at that point of time, the sub courts had unlimited pecuniary jurisdiction and the pecuniary jurisdiction of the District Munsif courts was limited to Rs.30,000/-. By the amendment introduced by Tamil Nadu Act 1 of 2004, the pecuniary jurisdiction of the District Munsifs was enhanced to Rs.1,00,000/- and the pecuniary jurisdiction of the Subordinate Judges was limited to Rs.5,00,000/- and District Judges were conferred with original jurisdiction to entertain original suits where the value of the subject matter of the suits exceeded Rs.5,00,000/-. Hence by virtue of the transitory provisions contained in Section 4 of Act 1 of 2004, the suit came to be transferred to the court of the District Munsif, Coimbatore and re-numbered as O.S.No.4273/2004 on the file of the District Munsif Court, Coimbatore. 4. The suit was resisted by the appellant herein/defendant based on the averments made in the written statement, which are in brief, as follows: In view of the filing of the earlier suit O.S.No.1693/1997 in the court of the District Munsif, Coimbatore for the relief of permanent injunction, the present suit for specific performance is barred by the provisions of Order II Rule 2 of the Code of Civil Procedure. The subsequent withdrawal of the said suit with leave to file a fresh suit in respect of the subject matter of the suit will not take away or affect the bar provided under Order II Rule 2 CPC. The leave contemplated under Order II Rule 2 (3) and the leave contemplated under Order XXIII Rule 1 (3) CPC to operate on different spheres. The leave contemplated under Order II Rule 2 (3) and the leave contemplated under Order XXIII Rule 1 (3) CPC to operate on different spheres. The execution of the suit sale agreement dated 28.05.1995 by the appellant herein/defendant in favour of the respondent herein/plaintiff agreeing to sell an extent of 4.28 acres comprised in S.Nos.108/5 and 109/7 (part) in Vadavalli village is true. It is also true that the price was fixed at the rate of Rs.21,000/-per cent and the total sale consideration was fixed at Rs.84,00,000/-holding that the 28 cents which had to be left for roads and passages would be excluded for the purpose of computing the total consideration and that a sum of Rs.3,00,000/-was paid as advance by the respondent/plaintiff at the time of execution of the agreement. Under the agreement a period of six months was fixed for the respondent/plaintiff to perform her part of the contract. The said condition prescribing a time limit for performance was the essence of the contract. In case of failure on the part of the respondent/plaintiff to pay the balance sale consideration within the stipulated time, she would not only forfeit her right to purchase the property, but would also lose the advance amount. The respondent/ plaintiff was never ready and willing to perform her part of the contract under the agreement within the periods stipulated in the agreement. The respondent/plaintiff was able to arrange for the funds to make payment for the conveyance of 2.00 acres alone, that too after the said period of six months stipulated in the agreement was over. In fact though the total amount payable for the 2.00 acres comes to Rs.42,00,000/-, the respondent/plaintiff paid only a sum of Rs.41,50,000/- which includes Rs.3,00,000/-paid as advnace under the agreement and still reposing confidence in the respondent/plaintiff and accepting her promise that the balance amount of Rs.50,000/-would be paid, the appellant/defendant conveyed 2.00 acres out of 4.28 acres by executing five sale deeds in favour of the nominees of the plaintiff. As such even for the 2.00 acres of land which was conveyed, a balance amount of Rs.50,000/-is due from the plaintiff. To be precise, out of the total sale consideration of Rs.84,00,000/-, the respondent/plaintiff had paid only a sum of Rs.41,50,000/-. As such even for the 2.00 acres of land which was conveyed, a balance amount of Rs.50,000/-is due from the plaintiff. To be precise, out of the total sale consideration of Rs.84,00,000/-, the respondent/plaintiff had paid only a sum of Rs.41,50,000/-. Under such circumstances alone, the appellant/defendant issued a notice dated 12.07.1997 informing the respondent/plaintiff that she had lost her right under the contract and also forfeited all the rights under the agreement as she did not complete the transaction and calling upon the respondent/plaintiff to pay the unpaid purchase money, namely the balance amount of sale consideration referable to 2.00 acres of land conveyed to the nominees of the respondent/plaintiff. After receiving he said legal notice, the respondent herein/plaintiff sent a reply dated 31.07.1997 falsely claiming that she had paid a total sum of Rs.83,50,000/-and only a balance sum of Rs.50,000/- was due. The appellant/defendant issued a rejoinder dated 16.08.1997 reiterating the earlier contentions made in the reply notice dated 31.07.1997. Only thereafter, the respondent/plaintiff filed a frivolous suit in O.S.No.1693/1997 in the court of the District Munsif, Coimbatore for permanent injunction, without getting the leave of the court to file a separate suit for the relief of specific performance. Subsequently, the said suit was withdrawn and the present suit came to be filed by falsely claiming that the respondent/plaintiff had paid a total sum of Rs.83,50,000/- and has left only a sum of Rs.50,000/- to be paid as balance consideration, whereas the actual amount paid by the respondent/plaintiff was only Rs.41,50,000/- and he got the sale deeds executed in respect of 2.00 acres for which alone the corresponding sale consideration comes to Rs.42,00,000/-. Even otherwise in a suit for specific performance, the reliefs would be valued on par with the value of the property as borne by the agreement, which is sought to be specifically enforced. The suit has been under-vlaued and a lesser amount has been paid as court fee. The respondent/plaintiff was not ready and willing to perform her part of the contract under the suit agreement for sale. Hence the suit filed by the respondent/plaintiff for specific performance should be dismissed with cost. 5. Based on the above said averments five issues and two additional issues were framed by the trial court and the same are as follows: “Issues: 1. Whether the suit is not maintainable in the light of Order II Rule 2 CPC? Hence the suit filed by the respondent/plaintiff for specific performance should be dismissed with cost. 5. Based on the above said averments five issues and two additional issues were framed by the trial court and the same are as follows: “Issues: 1. Whether the suit is not maintainable in the light of Order II Rule 2 CPC? 2. Whether time is an essential condition of agreement for sale? 3. Whether the plaintiff had not been ready and willing to perform her part of the contract under the suit agreement for sale? 4. What is the balance amount of sale consideration to be paid by the plaintiff? 5. Whether the plaintiff is entitled to the relief of specific performance as prayed for? 6. To what relief the plaintiff is entitled? Additional Issues: 1. Whether the court fee paid by the plaintiff is correct? 2. Whether this court (trial court) has pecuniary jurisdiction to entertain the suit? (explanation supplied)” 6. Based on the above said issues, a trial was conducted and in the trial, three witnesses were examined as PWs.1 to 3 and 38 documents were marked as Exs.A1 to A38 on the side of the respondent herein/plaintiff, whereas five witnesses were examined as DWs.1 to 5 and 52 documents were marked as Exs.B1 to B52 on the side of the appellant herein/defendant. In addition Exs.X1 to X3 were also marked. 7. At the conclusion of trial, the learned II Additional District Munsif, Coimbatore considered the pleadings and evidence in the light of the arguments advanced on both sides and decided the additional issues 1 and 2 against the appellant herein/defendant and in favour of the respondent herein/plaintiff holding that the valuation of the suit relief was correctly made and the court fee paid was correct and that the trial court had pecuniary jurisdiction to try the suit. The learned II Additional District Munsif, Coimbatore also answered issues 1 to 5 in favour of the respondent herein/plaintiff and based on such finding decreed the suit and granted a decree for specific performance without cost as prayed for . The said decree of the trial court dated 23.11.2007 was confirmed by the lower appellate judge (II Additional Subordinate Judge, Coimbatore) by judgment and decree dated 18.08.2008 made in A.S.No.23/2008. The said decree of the trial court dated 23.11.2007 was confirmed by the lower appellate judge (II Additional Subordinate Judge, Coimbatore) by judgment and decree dated 18.08.2008 made in A.S.No.23/2008. The learned lower appellate judge also concurred with the findings of the trial court in respect of all the issues and the same resulted in the pronouncement of the appellate court's judgment confirming the decree passed by the trial court. Aggrieved by the same, the appellant herein/defendant has come forward with the present second appeal. 8. As per Section 100 of the Code of Civil Procedure, a second appeal appeal from an appellate decree of a court subordinate to the High Court shall lie to the High Court only on a substantial question of law. The normal course adopted shall be the admission of the second appeal identifying the substantial questions of law involved in the second appeal and then serving notice on the respondents. In certain cases wherein the High Court dealing with the second appeal is of the view that the second appeal can be disposed of at the admission stage itself in either way, the respondent shall be given notice before admission and on the appearance of the respondent and upon hearing both sides the appeal shall be dismissed if the court is satisfied that no substantial question of law is involved. If the court is satisfied that substantial questions of law are involved in the second appeal, such questions have to be identified at the time of hearing and the submissions on such questions to be made on both sides should be heard and a decision regarding such substantial questions of law is to be made by the High Court based on which the second appeal shall be disposed of. In this case, since this court was of the view that the second appeal could be disposed of at the time of admission itself, notice before admission was issued to the respondent and the respondent has entered appearance through counsel. At the time of hearing the second appeal, learned counsel for the appellant and the learned senior counsel for the respondent submitted that the appeal need not be heard for admission alone and a final disposal could be made based on identification of substantial questions of law involved in the second appeal. At the time of hearing the second appeal, learned counsel for the appellant and the learned senior counsel for the respondent submitted that the appeal need not be heard for admission alone and a final disposal could be made based on identification of substantial questions of law involved in the second appeal. As such, during the course of arguments, the following questions were identified as the substantial questions of law involved in the second appeal. Substantial Questions of Law: 1) Whether the courts below have committed an error in law in holding that a suit for specific performance filed by the purchaser under an agreement for sale has to be valued on par with the balance amount of consideration yet to be paid? 2) Whether the finding of the courts below that the trial court did have the pecuniary jurisdiction to entertain the suit is unsustainable in law? 3) Whether the finding of the courts below that leaving a sum of Rs.50,000/-, the balance amount of sale consideration had already been paid is perverse? 4) Whether the courts below committed an error in granting the relief of specific performance? 9. The learned counsel for the appellant and the learned senior counsel for the respondent advanced their arguments on the above said substantial questions of law and this court paid its anxious considerations to the same. 10. There is no dispute regarding the fact that the appellant/defendant entered into an agreement for sale with the respondent/plaintiff agreeing to sell 4.28 acres of land comprised in S.Nos.108/5 and 109/7 (part) in Vadavalli village for a total sale consideration of Rs.84,00,000/-; that the agreement was entered into on 28.05.1995 and that a sum of Rs.3,00,000/-was paid on the date of agreement as advance. The admitted suit agreement for sale has been produced and marked as Ex.A1. It is also not in dispute that pursuant to Ex.A1-agreement for sale and in part performance of the said agreement for sale, the appellant/defendant executed five sale deeds in favour of the nominees of the respondent/plaintiff covering a total extent of 2.00 acres out of 4.28 acres covered by the suit sale agreement. The said sale deeds were executed on 02.09.1995, 17.06.1996, 23.06.1996 and 02.07.1996 respectively. The sale deeds dated 02.09.1995, 17.06.1996 and 23.06.2006 executed by the appellant/defendant in favour of the nominees of the respondent/plaintiff have been produced and marked as Exs.A2 to A4 respectively. The said sale deeds were executed on 02.09.1995, 17.06.1996, 23.06.1996 and 02.07.1996 respectively. The sale deeds dated 02.09.1995, 17.06.1996 and 23.06.2006 executed by the appellant/defendant in favour of the nominees of the respondent/plaintiff have been produced and marked as Exs.A2 to A4 respectively. The certified copies of the other sale deeds dated 02.07.1996 executed in favour of nominees of the respondent/plaintiff have been produced and marked as Exs.A5 and A6. From the said documents, it is abundantly clear that out of 4.28 acres covered by the suit sale agreement marked as Ex.A1, 2.00 acres of land was conveyed under Exs.A2 to A4 and the originals of Exs.A5 and A6 in favour of the nominees of the respondent/plaintiff. According to the respondent/plaintiff, entire sale consideration (Rs.42,00,000/-) referable to the said 2.00 acres, regarding which Exs.A2 to A4 and the originals of A5 and A6 were executed, was paid either by the respondent/plaintiff or by the nominees of the respondent/plaintiff in whose favour the sale deeds were executed. As such, it is obvious that the said sale deeds were executed in part performance of the agreement for sale and that with regard to the remaining extent, the agreement remained executor y till the filing of the suit. 11. It is the contention of the learned counsel for the appellant/defendant that whenever a suit for specific performance of agreement for sale is filed, irrespective of the fact a part of the property agreed to be sold has already been conveyed in terms of the agreement, the party filing the suit for specific performance should value the relief at the total consideration fixed in the agreement; that a sum of Rs.84,00,000/- was the total sale consideration fixed under Ex.A1-agreement for sale and that hence the suit filed by the respondent/plaintiff for the relief of specific performance should have been valued at Rs.84,00,000/-. In this regard, the learned senior counsel for the respondent/plaintiff would submit that when the agreement contemplates conveyance of the property in parts under more than one sale deed and a portion of the property agreed to be sold under the agreement for sale has been sold pursuant to the agreement and the purchaser under the agreement comes forward with a suit for specific performance for the balance extent, then the contract under the agreement for sale shall be construed as one capable of being split up and the suit for specific performance can be laid only in respect of the part of the property, regarding which sale deed/sale deeds have not been executed in terms of the agreement for sale and that in such cases, in the suit for specific performance, the value of the relief should be worked out proportionately. The above said argument advanced by the learned senior counsel for the respondent/plaintiff is quite convincing and the same has to be countenanced. 12. However, the learned counsel for the appellant/defendant has contended that even if the plaintiff shall be permitted to split up the contract into two parts, one regarding which the performance was completed by executing sale deeds and the other regarding which performance was not completed and the suit has been filed seeking specific performance, then the suit shall be valued proportionately and the sale consideration referable to the un-conveyed portion shall be the value of the suit. There cannot be any dispute regarding the correctness of the above proposition made by the learned counsel for the plaintiff. In fact the respondent/plaintiff himself has chosen to seek the relief of specific performance only in respect of 2.00 acres of land out of the total extent of 4.28 acres on the premise that 28 cents was agreed to be left for roads and passages and the balance 2.00 acres have already been conveyed under Exs.A2 to A4 and the originals of Exs.A5 and A6. That is the reason why the respondent/plaintiff, after showing the total extent of 4.28 acres in the plaint schedule, has chosen to show a portion of the same extending 2.00 acres, regarding which specific performance has been sought for, as items 1 and 2 in the plaint schedule. That is the reason why the respondent/plaintiff, after showing the total extent of 4.28 acres in the plaint schedule, has chosen to show a portion of the same extending 2.00 acres, regarding which specific performance has been sought for, as items 1 and 2 in the plaint schedule. The respondent/plaintiff was also of the view that the contract under the Ex.A1 agreement for sale was capable of being split up and hence the respondent/plaintiff has chosen to show the area regarding which execution of sale deed/sale deeds was refused by the plaintiff as the property regarding which relief of specific performance has been sought for. While doing so, the respondent/plaintiff has rightly shown the proportionate sale consideration referable to 2.00 acres regarding which specific performance is sought for to be Rs.42,00,000/-. But after showing the sale consideration of the property regarding which specific performance is sought for to be Rs.42,00,000/-, a novel method has been adopted by the respondent/plaintiff to value the relief of specific performance by deducting a sum of Rs.41,50,000/- allegedly paid by the respondent/plaintiff and thus computing the value of the suit at Rs.50,000/- for the purpose of court fee and jurisdiction. 13. According to the contention raised by the learned counsel for the appellant/defendant, such a method adopted by the respondent/plaintiff is totally contradictory to the provision found in Section 42 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. Learned counsel appearing for the appellant/defendant pointing out the said provision, contends that the value of the suit should have been valued at Rs.42,00,000/- and the court fee should have been paid on the basis of such valuation. Learned counsel for the appellant/defendant pointed out the fact that the respondent/plaintiff deliberately valued the suit on the balance amount of sale consideration payable by her, which is totally contrary to the provision of law. It is the further contention of the learned counsel for the appellant/defendant that the trial court and the lower appellate court have closed their eyes to the above said violation of the provision regarding valuation for the purpose of court fee and jurisdiction and that the courts below have committed a grave error in holding that the suit was properly valued and the trial court did have the pecuniary jurisdiction to try the suit. 14. 14. In this regard, the trial court proceeded on the misconception that the questions of valuation and jurisdiction were already decided and the same was not challenged by the appellant/defendant. For arriving at such a conclusion, the learned trial judge made the following observations: i) A petition in I.A.No.97/1999 was filed by the appellant/defendant under Order XIV Rule 2 CPC for deciding the question of valuation and court fee as a preliminary issue and the said petition was dismissed after enquiry. ii) The court fee examiner of the High Court issued a check slip on the premise that the suit was under-valued and the court fee was not correct, but the check slip was closed by an order dated 27.08.2003 holding that the valuation provided in the plaint and the court fee paid were correct. 15. The learned trial judge was of the view that the closure of the court fee check slip amounted to a decision of the court on a contested issue and the same would amount to res judicata in the later part of the proceedings in the very same suit. But the fact remains that the issuance of check slip and the closure of the check slip are the matters between the court and the plaintiff and the defendant's right to raise the question of improper valuation (under valuation) and payment of incorrect court fee, shall not be taken away by such closure of the check slip. In fact, after such closure alone, the interlocutory application for deciding the question of valuation and court fee was raised and the issue regarding jurisdiction was framed as additional issues. The interlocutory application for deciding the said questions as preliminary issues came to be filed only after the closure of the check slip. Certified copies of fair and decreetal order made in I.A.No.97/1999 have been produced and marked as Ex.A15. A perusal of the said order will show that the trial court made a decision that the issue regarding valuation and court fee could not be decided as a preliminary issue. The said order was misconstrued by the trial court to be an order rejecting the contention of the appellant/defendant that the suit was under-valued and the court fee paid was not correct. The said order was misconstrued by the trial court to be an order rejecting the contention of the appellant/defendant that the suit was under-valued and the court fee paid was not correct. What was decided in the interlocutory application filed under Order XIV Rule 2 was that the said question could be decided in the suit along with the other issues and the same need not be decided as a preliminary issue. Therefore, the reason assigned by the learned trial Judge for holding that the question of valuation and court fee was a closed issue, is erroneous and unsustainable. 16. The learned lower appellate judge also committed the very same mistake by referring to the said order and also the order closing the court fee check slip as decisions rendered on a contested issue for arriving at a conclusion that the said question had already been decided. The fact remains that the same was not an issue raised, tried and decided on merit. The closure of the court fee check slip was nothing but an administrative function and hence the same could not be projected as an order constituting res judicata regarding the issue of valuation and court fee. So far as the dismissal of I.A.No.97/1999 by the then trial court (II Additional Subordinate Judge, Coimbatore) before the suit transferred to the District Munsif court based on Tamil Nadu Act 1 of 2004, the same was nothing but an order holding that the question of valuation and court fee need not be tried as a preliminary issue. Hence the same could not have been validly construed to be a decision on the issue regarding valuation and court fee to constitute a bar for deciding such a question in the later part of the proceedings on the basis of the principle of res judicata. 17. In this regard, it is pertinent to note that even a revision under Section 115 of the Civil Procedure Code could not have been successfully filed against the order dismissing the said petition filed under Order XIV Rule 2 CPC. Even if the order passed in the said application, namely I.A.No.97/1999 had been in favour of the respondent/plaintiff, the same would not have resulted in the final disposal of the case. Even if the order passed in the said application, namely I.A.No.97/1999 had been in favour of the respondent/plaintiff, the same would not have resulted in the final disposal of the case. On the other hand, the order was only interlocutory in nature, since even the order allowing the application would require the trial of the preliminary issue and regarding a decision on the preliminary issue after such order. Hence the revision could not have been successfully made. Be that as it may, whenever any interlocutory order is passed, which is not appealable as per the provisions of CPC or any other law governing the proceedings, the aggrieved party need not file a revision and it shall be open to such a party to raise such an issue as a ground in the appeal filed against the final decision arrived at in the suit. An order dismissing the application to try an issue as a preliminary issue does not decide that issue, but relegates that issue to be decided along with other issues. Hence such an order cannot be termed a preliminary decree so as to attract the bar provided under section 97 of the Civil Procedure Code. Section 97 says where a party aggrieved by a preliminary decree does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal, which may be preferred from the final decree. A reading of the said section itself will make it clear that only when decrees are made in parts by passing a preliminary decree at the first instance and a final decree thereafter, the party aggrieved by such preliminary decree should file an appeal against the preliminary decree itself and the correctness of the same cannot be questioned in an appeal that may be preferred against the final decree. To attract the said section, there should be a preliminary decree. In this case, at no stretch of imagination, the order closing the court fee check slip or the order dismissing the application filed under Order XIV Rule 2 CPC for deciding the issue regarding valuation and court fee as a preliminary issue can be taken as a preliminary decree. To attract the said section, there should be a preliminary decree. In this case, at no stretch of imagination, the order closing the court fee check slip or the order dismissing the application filed under Order XIV Rule 2 CPC for deciding the issue regarding valuation and court fee as a preliminary issue can be taken as a preliminary decree. This court does have no hesitation in coming to the conclusion that the finding of the trial court as well as the lower appellate court that the order passed dismissing the application in I.A.No.97/1999 filed under Order XIV Rule 2 CPC requesting the court to try the issue of valuation and court fee as a preliminary issue would tantamount to a preliminary decree or a decision on the issue regarding valuation and court fee to constitute res judicata for the trial of the same at the later part of the proceedings in the suit is based on misconception. Therefore, this court comes to the conclusion that the trial court and the lower appellate court have rendered a perverse finding in this regard and the said finding of the courts below is liable to be interfered with, set aside and reversed. 18. We have seen that neither the order closing the court slip nor the order dismissing an application praying for the trial of the issue of valuation and court fee as a preliminary issue would constitute res judicata and that the courts below have rendered a perverse finding in this regard. Hence the question of correctness of the valuation and court fee has to be decided on merit based on the available materials. Evidence have been adduced in full sufficient to render a finding regarding the said issue. In fact the said issue can be decided based on the pleading made by the plaintiff herself. Ex.A1-agreement was entered into for the sale of 4.28 acres for a total sale consideration of Rs.84,00,000/-. Admittedly, out of the said extent of 4.28 acres, an extent of 2.00 acres was conveyed to the nominees of the respondent/plaintiff in part performance of Ex.A1-agreement for sale. The consideration referable to the said 2.00 acres of land conveyed under Exs.A2 to A4 and the originals of Exs.A5 and A6 is admittedly Rs.42,00,000/-. Admittedly, out of the said extent of 4.28 acres, an extent of 2.00 acres was conveyed to the nominees of the respondent/plaintiff in part performance of Ex.A1-agreement for sale. The consideration referable to the said 2.00 acres of land conveyed under Exs.A2 to A4 and the originals of Exs.A5 and A6 is admittedly Rs.42,00,000/-. According to the respondent/plaintiff the entire sale consideration referable to the 2.00 acres of land conveyed under Exs.A2 to A4 and the originals of Exs.A5 and A6 amounting to Rs.42.00 lakhs was paid and only after payment of the same, the sale deeds were executed. The appellant/defendant would contend that only a sum of Rs.41,50,000/- was paid and believing the promise made by the respondent/plaintiff to pay the balance amount of Rs.50,000/-, sale deeds under Exs.A2 to A4 and the originals of Exs.A5 and A6 came to be executed. 19. Be that as it may, the suit has been filed seeking specific performance of the agreement regarding the remaining 2.00 acres of land and the portion of the consideration referable to the same is Rs.42.00 lakhs. It should be borne in mind that 'nil' value has been fixed for 28 cents of land to be left for roads and passages. Even as per the plaint averment, the sale consideration for the 2.00 acres of land, regarding which the respondent/plaintiff has prayed for the relief of specific performance is Rs.42.00 Lakhs. Having thus admitted that the consideration for the sale of 2.00 acres of property, regarding which the prayer for specific performance has been made, is Rs.42,00,000/-, the respondent/plaintiff has chosen to value the relief at Rs.50,000/-being the unpaid sale consideration, according to the respondent/plaintiff. It is not a case filed by the vendor for the recovery of unpaid purchase money. Only in such cases, the relief shall be valued at the figure representing the unpaid purchase money. So far as suits for specific performance directing execution of sale deeds in respect of immovable properties are concerned, the suit shall be valued on par with the amount of sale consideration referable to the property regarding which execution of sale deed is sought for and court fee shall be computed on the amount of consideration. So far as suits for specific performance directing execution of sale deeds in respect of immovable properties are concerned, the suit shall be valued on par with the amount of sale consideration referable to the property regarding which execution of sale deed is sought for and court fee shall be computed on the amount of consideration. If at all the contention of the respondent/plaintiff that a suit for specific performance seeking direction against the vendor under the agreement for sale can be valued as equivalent to the balance sale consideration to be paid, then a party purchaser claiming to have paid the entire sale consideration can file a suit paying a minimum court fee alone valuing the suit at the minimum. In such an event, even regarding the property worth crores of rupees, suits can be filed either in the Munsif Court or in the Sub court stating that the balance sale consideration to be paid is 'nil' or only a meagre amount, as major part of the consideration has already been paid. Such an anomaly will arise, in case the above said contention of the respondent/plaintiff is accepted. 20. Furthermore, the law on this aspect is clear and unambiguous. Section 42 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 dealing with the suits for specific performance reads as follows: 42. Suits for specific performance In a suit for specific performance, whether with or without possession, fee shall be payable-- (a) in the case of a contract of sale, computed on the amount of the consideration; (b) in the case of a contract of mortgage, computed on the amount agreed to be secured by the mortgages; (c) in the case of a contract of lease, computed on the aggregate amount of the fine or premium, if any, and of the average of the annual rent agreed to be paid; (d) in the case of a contract of exchange, computed on the amount of the consideration, or as the case may be, on the market value of the property sought to be got in exchange; (e) in other cases, where the consideration for the promise sought to be enforced has a market value, computed on such market value, or where such consideration has no market value, at the rates specified in section 50. Sub clause (a) of the said section makes it clear that the court fee shall be computed on the amount of consideration in case of a contract for sale. 21. In this case, admittedly the consideration referable to the property, regarding which specific performance is sought for, is Rs.42.00 Lakhs. Therefore, the suit should have been valued at Rs.42,00,000/- for the purpose of court fee and jurisdiction. Without doing the same, the respondent/plaintiff has chosen to value the suit at Rs.50,000/- equivalent to the unpaid sale consideration (according the respondent/plaintiff) and paid a sum of Rs.3,750.50P alone as court fee. This court comes to the conclusion that the above valuation is totally against the letter and spirit of section 42 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. Hence it is hereby held that the suit has been grossly under-valued and the court fee paid is insufficient. Accordingly this court holds that the courts below have committed an error in law in holding that the suit for specific performance filed by the purchaser under an agreement for sale has to be valued on par with the balance amount of consideration yet to be paid. The first substantial question of law is answered accordingly. 22. The next question that arises for consideration is whether the finding of the courts below that the trial court did have the pecuniary jurisdiction to entertain the suit is unsustainable in law? We have seen in the discussion regarding the first substantial question of law that the suits ought to have been valued at Rs.42,00,000/- for the purpose of court fee and jurisdiction. If the value of the suit is taken as Rs.42,00,000/-, then the trial court (Additional District Munsif, Coimbatore) would not have the pecuniary jurisdiction to try the suit. Even the sub court would not have the pecuniary jurisdiction to try the suit at the time of disposal of the suit by the trial court, since by then Tamil Nadu Act 1 of 2004 altering the pecuniary jurisdiction of the civil courts came into force and by virtue of section 4 of the said Act, the suit would have stood transferred to the District Court. By the Tamil Nadu Act 1 of 2004, pecuniary jurisdiction of District Munsifs was enhanced to Rs.1,00,000/-and the pecuniary jurisdiction of the Subordinate judges, who enjoyed unlimited pecuniary jurisdiction prior to the said amendment was restricted to suits of value not exceeding Rs.5,00,000/-. Of course it is true that the suit was filed in the proper court, namely the Sub Court as the Sub court enjoyed unlimited pecuniary jurisdiction on the date of filing of the suit. The suit was filed on 29.04.1998. But after Tamil Nadu Act 1 of 2004 came into force, even the sub court would have lost its jurisdiction to try the suit, as its value exceeded Rs.5,00,000/- and by virtue of Section 4 of Act 1 of 2004, the suit would have stood transferred to the file of the District Judge. Due to acceptance of erroneous valuation, the suit came to be transferred to the file of the court of District Munsif. Had proper valuation been adopted, the suit would have been transferred to the file of the District Judge. It is also brought to the notice of the court that by a subsequent amendment by Tamil Nadu Act 19 of 2010, the pecuniary jurisdiction of the subordinate judges has been enhanced to Rs.10,00,000/- and the pecuniary jurisdiction of the District Judges now extends to all original suits or proceedings of civil nature, the value of the subject matter of which is more than Rs.10,00,000/-. Even as per the said amendment, neither the District Munsif nor the Subordinate Judge shall have the pecuniary jurisdiction to try the suit. In ordinary circumstances, when a suit is allowed to reach its logical ends on merits, even though the question of jurisdiction might have been raised at the earliest point, unless the defendant is proved to have been prejudiced or that the same has resulted in miscarriage of justice, the appellate courts need not interfere with the same on the mere ground that the value of the suit exceeded the pecuniary limit of the jurisdiction of the trial court. 23. In this case, at the earliest point of time, the appellant/defendant took a plea that the suit had been grossly under-valued and the court fee paid was insufficient. The written statement was filed while the suit was pending on the file of the Sub-court and during the said period the sub court did have unlimited pecuniary jurisdiction. 23. In this case, at the earliest point of time, the appellant/defendant took a plea that the suit had been grossly under-valued and the court fee paid was insufficient. The written statement was filed while the suit was pending on the file of the Sub-court and during the said period the sub court did have unlimited pecuniary jurisdiction. Therefore, there was no occasion for the appellant/defendant to raise the question of jurisdiction before the Subordinate Judge. Once Act 1 of 2004 came into force and the suit was transferred to the file of the District Munsif Court, the appellant/defendant raised additional issues not only regarding the valuation but also regarding the jurisdiction of the trial court, namely District Munsif Court. The appellant/defendant also made an attempt to have the issue regarding valuation decided as a preliminary issue when the suit was pending on the file of the Sub court. By the wrong decision of the said court, not only the suit was tried by a court having no pecuniary jurisdiction to try the suit, but also the first appeal was heard and disposed of by a court, which would not have jurisdiction. The suit itself should have been transferred to the file of the District Judge against whose decree a first appeal shall lie to the High Court. In view of the above said circumstances, one cannot contend that no prejudice has been caused. On the other hand, this court is of the considered view that by the erroneous decision of the courts below regarding the jurisdiction, not only the appellant/defendant is prejudiced, but also it resulted in miscarriage of justice. For all the reasons stated above, this court comes to the conclusion that the finding of the trial court that the trial court did have the pecuniary jurisdiction to entertain the suit is unsustainable in law and the second substantial question of law is answered accordingly. 24. In the foregoing discussions, it has been held that the suit had been grossly undervalued and the court fee paid is insufficient and that the suit should have been valued at Rs.42,00,000/- and the court fee should have been paid on the said amount. Consequent to the said findings, it has also been held that the trial court did not have the pecuniary jurisdiction to entertain the suit and that the suit ought to have been transferred to the District Court. Consequent to the said findings, it has also been held that the trial court did not have the pecuniary jurisdiction to entertain the suit and that the suit ought to have been transferred to the District Court. The said issues are basic issues, which go to the root of the case itself. Hence the decision rendered on merits on other issues by the trial court and also the first appellate court shall be the decisions rendered by the courts having no jurisdiction. In view of the same, the other findings are liable to be set aside without even going into the merits of the case. That shall be a sufficient answer to the questions framed as 3rd and 4th substantial questions of law. 25. In the foregoing discussions, it has been held and that the suit was grossly undervalued and the trial court did not have the pecuniary jurisdiction to entertain the suit. It has also been held that the suit should have been valued at Rs.42,00,000/- and the court fee should have been paid on the above said amount. Hence the appeal succeeds and the decree passed by the trial court and the decree passed by the appellate court confirming the decree passed by the trial court are liable to set aside. The suit shall be remitted back to the trial court offering a chance to the respondent/plaintiff to amend the valuation of the plaint and pay the court fee in accordance with this judgment. The respondent herein/plaintiff shall amend the valuation of the suit by valuing the suit at Rs.42,00,000/- and pay the deficit court fee within six weeks. In case the respondent herein/plaintiff fails to amend the valuation and pay deficit court fee, the plaint shall be rejected by the trial court (Additional District Munsif) itself. In case the direction is complied with by amending the valuation and by paying the deficit court fee, the learned Additional District Munsif, Coimbatore (trial judge) shall transmit the case file to the District Court for trial, as it shall stand transferred to the District Court by virtue of Section 4 of Tamil Nadu Act 19 of 2010 amending section 12 of the Tamil Nadu Civil Courts Act, 1873. On receipt of the same in the District Court, the District Judge shall conduct a de novo trial and dispose of the same in accordance with law, as expeditiously as possible, preferably within six months. The appellant/defendant shall also be entitled to raise all the plea of defence and shall also be entitled to seek for the rejection of the plaint on any ground available to her under Order VII Rule 11 CPC. 26. In the result, the second appeal is allowed. The decree of the trial court dated 23.11.2007 made in O.S.No.4273/2004 and the decree passed by the appellate court dated 18.08.2008 made in A.S.No.23 of 2008 confirming the decree passed by the trial court are set aside. The suit is remitted back to the trial court with the following directions: i) The respondent/plaintiff shall amend the valuation of the the suit by valuing the suit at Rs.42,00,000/- and pay the deficit court fee within six weeks. ii) In case the respondent herein/plaintiff fails to amend the valuation and pay deficit court fee, the plaint shall be rejected by the trial court (Additional District Munsif, Coimbatore) itself. iii) In case the direction is complied with by amending the valuation and by paying the deficit court fee, the learned Additional District Munsif, Coimbatore (trial judge) shall transmit the case file to the District Court for trial, as it shall stand transferred to the District Court by virtue of Section 4 of Tamil Nadu Act 19 of 2010 amending section 12 of the Tamil Nadu Civil Courts Act, 1873. On receipt of the same in the District Court, the District Judge shall conduct a de novo trial and dispose of the same in accordance with law, as expeditiously as possible, preferably within six months. iv) it is also made clear that the appellant/defendant shall be entitled to raise every plea of defence and shall also be entitled to apply for the rejection of the plaint on any ground available to her under Order VII Rule 11 CPC. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.