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2018 DIGILAW 3164 (MAD)

Shylaja v. D. Vivekanandan

2018-09-24

M.S.RAMESH

body2018
JUDGMENT M.S. Ramesh, J. The defendants 1, 2 and 4 are the petitioners herein in the present revision which is filed against the order dismissing their application seeking for rejection of the plaint under Order VII Rule 11 of the Civil Procedure Code. The main ground raised in the aforesaid application for rejection of the plaint is that the relief claimed in the suit is undervalued since the suit property is a residential housing plot whereas the plaintiff had valued the suit property as an agricultural land. The court had rejected the petitioner's plea stating that no documents were produced alongwith the application under Order VII Rule 11 CPC to substantiate the nature of the property and that the issues raised for claiming rejection of plaint can be determined during the trial. 2. The learned counsel for the petitioners submitted that the sale deed dated 24.12.2010 which is a prime document relied upon by the plaintiff is for a residential plot where the sale consideration has been shown as Rs. 32,70,000/-. By pointing out the valuation in the plaint, the learned counsel submitted that the market value of the suit property have been calculated for the relief of declaration based on the kist value of the property and as such the valuation for the relief claimed is under-valued. As such, the learned counsel submits that in view of Order VII Rule 11 (b), the plaint is liable to be rejected. 3. The learned counsel for the respondents on the other hand submitted that the petitioners herein ought to have substantiated their claim by producing relevant documents to establish the nature of the property and there is no infirmity on the finding of the court below and hence the application under Order VII Rule 11 CPC does not require any consideration in the absence of such documents. Even otherwise, the learned counsel submitted that the issues with regard to the valuation of the suit can be gone during the course of trial and as such, the present Civil Revision Petition requires to be rejected. 4. I have given careful consideration to the submissions made by the respective counsels. 5. The issue as to whether the suit property is in the nature of a residential plot or an agricultural land would normally be determined by the court below on being satisfied with the necessary materials substantiating the character of the property. 4. I have given careful consideration to the submissions made by the respective counsels. 5. The issue as to whether the suit property is in the nature of a residential plot or an agricultural land would normally be determined by the court below on being satisfied with the necessary materials substantiating the character of the property. Nevertheless, when certain documents relied upon by the petitioners herein namely the sale deed produced alongwith the plaint prima facie evidences the suit property to be a residential plot, the same cannot be ignored. 6. The question as to whether a plaint can be rejected on the ground of valuation alone came up for consideration before the Hon'ble Apex Court in a judgment in the J.Vasanthi & Others v. N.Ramani Kanthammal, (2018) 1 LW 351 . The Hon'ble Apex court while deciding the scope of Order VII Rule 11 CPC on an application filed on the ground of under-valuation of the suit property, had observed that the valuation of a suit on payment of court fee shall depend upon the Special State Act and while allowing the Special Leave Petition, had directed for payment of the requisite court fee therein. In the light of such an observation, the State Act, namely the Tamil Nadu Court Fees and Suits Valuation Act requires to be looked into. 7. Section 7 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 provides for determination of market value as on the date of presentation of the plaint. As per the said provision, the estimate made by the plaintiff at the time of presentation of the plaint requires to be accepted by the Trial Court subject to any objections that may be raised by the defendant. Section 12 of the Act deals with the decision as to proper fee in the Subordinate Courts. The substance of Section 12 of the Tamil Nadu Court Fees and Suits Valuation Act is to the effect that whenever a question as to valuation for the purpose of determining the jurisdiction of courts is raised, such a plea requires to be taken up as a preliminary issue and when the court decides that the subject matter of the suit has been under-valued, it shall fix a date before which the plaint shall be amended in accordance with the courts decision and the deficit court fees paid thereon. In other cases, the plaint shall be rejected. 8. A cogent reading of Section 12 alongwith Section 7 would go to show that whenever the defendant, through the written statement filed before the first hearing of the suit or before the evidence is recorded, raises the question of under-valuation, such an issue shall be tried as a preliminary issue. In the instant case, the court below had rejected the petitioner's plea in the application filed under Order 7 Rule 11 stating that the grounds raised therein could be agitated during the course of trial and that there was no sufficient materials to appreciate or value the suit properties. In view of Section 12 of the Tamil Nadu Court Fees and Suit Valuation Act, such a finding by the court below may not be proper. On the other hand, the proper recourse for the Trial Court is to frame a preliminary issue on the valuation of the suit in accordance with Section 12 of the Act. 9. In a judgment of this Court [C.A.Sivanandan & another v. Rathna & another,2016 SCCOnline(Mad) 32985], relied on two or more judgments of this Court and observed as follows - 26. Per contra, the learned counsel appearing for the petitioner has produced two judgments in respect of Division Bench in S.N.S.Sukumaran v. C.Thangamuthu, (2012) 5 CTC 705 , it is stated as follows: 31. After giving our anxious consideration to the matter and having regard to the law discussed hereinabove, the reference is answered as under:- (1) The Tamil Nadu Court Fees and Suits Valuation Act, 1955 (Section 12) enacted by the State Legislature on a subject covered by the Concurrent List, albeit inconsistent with the provisions of the Code of Civil Procedure (Order XIV, Rule 2) and being in compliance with the requirement of Article 254 of the Constitution of India, having been given assent by the President of India, shall prevail over the provisions of the Code of Civil Procedure. (2) When a defendant comes forward with a case pleaded in the written statement questioning the correctness of the valuation of the suit property and payment of court fee and asks the Court, by an application, to decide it first before deciding the suit on merits, then a duty is cast upon the Court under Section 12(2) of the State Act to first decide the objection before deciding the suit on merits. (3) However, before proceeding to decide the objection with regard to valuation and court fee as provided under Section 12(2) of the State Act, the Court shall prima facie satisfy itself, on perusal of the pleadings of the parties and the materials brought on record, that the objection raised by the defendant has substance. (4) Such objection with regard to improper valuation of the suit and insufficiency of court fee shall be entertained by the Court only before the hearing of the suit on merits commences and witnesses are examined. Section 12(2) of the State Act makes it clear that such objection shall be heard and decided before evidence is recorded on the merits of the case. (5) Exercise of right by the defendant as contained in Section 12(2) of the Act must be bona fide and not with an ulterior motive of dragging the suit on this issue. Hence, the Court shall not grant unnecessary adjournments in hearing of such application, and in the event the Court finds that the defendant is not diligent or co-operating with the Court in the disposal of such objection expeditiously, then the Court shall proceed with the hearing of the suit on merits and decide all issues, including the one relating to the valuation of the suit and the adequacy or otherwise of court fee, together. (2)V.R.Gopalakrishnan v. Andiammal, (2002) 2 CTC 513 , it is stated as follows: Code of Civil Procedure, 1908, Order 14, Rule 2 Preliminary issue Tamil Nadu Court Fees and Suits Valuation Act, 1955, Section 12(2) Conflict between substantial law and procedural law Code of Civil Procedure is procedural law and Tamil Nadu Court fees and Suits Valuation Act is substantial law Substantial law will prevail over procedural law Court has to hear issue regarding valuation of suit property or payment of court fee as preliminary issue if defendant files independent application to that effect and not otherwise Once such application is filed court has no discretion and it shall be heard as preliminary issue - 13. There is also a provision in the Tamil Nadu Court Fees and Suits Valuation Act, 1955 viz., Section-12 which lays down that the Court shall decide on the materials and allegations available in the plaint, the proper court fee payable thereon. There is also a provision in the Tamil Nadu Court Fees and Suits Valuation Act, 1955 viz., Section-12 which lays down that the Court shall decide on the materials and allegations available in the plaint, the proper court fee payable thereon. Section 12(2) of the Act reads thus:- "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 costs of the suit." According to the above provision, all questions arising as such pleas shall be heard and hence no discretion is vested with the Court. If on the basis of the materials and allegations contained in the plaint, the Court comes to the conclusion that the suit has not been properly valued or that the fee paid is not sufficient, the Court can call upon the plaintiff to amend the plaint and also pay the deficit court fee. If the plaintiff fails to do that, the Court shall reject the plaint and pass appropriate orders. Once the Court decides that the subject matter of the suit has not been properly valued or that the court fee paid is not sufficient, the Court has no option except to fix a date and call upon the plaintiff to comply the defect viz., by amending the plaint and also by paying necessary court fee. It has to be noticed that in this Section, the word "shall" has been employed as against the word "may" that occurs in Order-14 Rule-2 CPC. It has to be noticed that in this Section, the word "shall" has been employed as against the word "may" that occurs in Order-14 Rule-2 CPC. Of course, it is the settled legal position that the question of valuation must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits and further all the material allegations contained in the plaint should be construed and taken as a whole. It is the substance and not the form matters (vide Neelavathi v. N.Natarajan, (1980) AIR SC 691 and Tara Devi v. Thakur Radha Krishna Maharaj, (1987) AIR SC 2085. 14. There appears to be some conflict between the provisions in C.P.C. (ie) Order 14 Rule 2 when read with Section 12 (2) of the Tamil Nadu Court Fees and Suits Valuation Act with reference to deciding the pecuniary jurisdiction of the Court. Suppose in a given case, the defendant comes forward with an application requesting the court to decide an issue relating to valuation of the suit property or the payment of court fee as a preliminary issue, the Court may applying the provision Order 14 Rule 2, decide to consider along with other issues and not as a preliminary issue. Then the defendant may file an application to consider the issue as per the provisions of Section 12 (2) of the Tamil Nadu Court Fees and Suits Valuation Act, then the Court will have no discretion and it has to consider the same. The Tamil Nadu Court Fees and Suits Valuation Act is a substantial law while C.P.C is a procedural law. The substantial law will prevail over the procedural code and consequently, it follows whenever the defendant files an application, requesting the court to decide the issue of valuation of the suit property or the payment of court fee and all questions arising on such pleas as a preliminary issue, the Court has to necessarily consider as per the provisions of Section 12 (2) of the Tamil Nadu Court Fees and Suits Valuation Act. Not in all cases where 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. Not in all cases where 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. Only where the defendant makes an application, the Court is bound to consider under Section 12 (2) of the Tamil Nadu Court Fees and Suits Valuation Act. 19. To sum up, the legal position is: {a) As per the amended Order-14 Rule-2, though a case may be capable of being disposed of on a preliminary issue, the Court is given a mandate to try all the issues together. {b} However, an exception is made to this mandate by giving discretion to try an issue as to jurisdiction or a statutory bar to the suit as a preliminary issue. {c} In a given case, the Court may decline to try even an issue relating to its jurisdiction or to a statutory bar to the suit as a preliminary issue if it considers expedient to do so. {d} The discretion vested with the court has to be exercised judiciously. {e} The parties will be at liberty to adduce such evidence as they may desire only in relation to that issue. {f} Ordinarily, no revision under Section 151 CPC will be entertained against the order of the trial court once such a discretion is used. But however, it is not an absolute one and in exceptional cases, the Court can entertain Revision and interfere. {g} When the defendant comes forward with an application disputing the valuation of the property or contends that the suit has not been properly valued, the Court has to consider the same. Such consideration shall be as per Section 12 (2) of the Tamil Court Fees and Suits Valuation Act and the Court cannot choose to decide that issue along with other issues. This provision viz., Section 12 (2) of the Tamil Nadu Court Fees and Suits Valuation A ct 1955, which is a substantial law shall prevail over Order 14 Rule 2 CPC which is a procedural law. {h} In the course of considering a preliminary issue, the Court is empowered to record such evidence as parties desire to let in only in relation to that issue/aspect. {i} The allegations in the plaint have to be taken as a basis and the claim must be read as a whole. {h} In the course of considering a preliminary issue, the Court is empowered to record such evidence as parties desire to let in only in relation to that issue/aspect. {i} The allegations in the plaint have to be taken as a basis and the claim must be read as a whole. The accepted Rule is that substance alone matters and not the form. {j} When a suit is filed seeking a decree to set aside the sale, Court Fee has to be paid on the market value of the property on the date of filing of the suit. {k} But however, if a plea is raised that the signature was obtained in a blank paper or that some misrepresentation was made and thereby fraud was played on the executor, then Court fee need not be paid for setting aside the same. 27. As per the above judgment, it is made clear that the defendant comes forward with an application disputing the valuation of the property or contends that the suit has not been properly valued, the Court has to consider the suit value first and decide the issue as a preliminary issue and the Court cannot seize the issue along with the other issues, since the provision under Section 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955, which is a substantial law shall prevail over Order 14 Rule 2, C.P.C., which is a procedural law. 10. The aforesaid order is self-explanatory. In view of the self-contained provisions of Tamil Nadu Court Fees and Suits Valuation Act as well as the dictum of the Hon'ble Apex Court and the various other orders of this Court, I am of the view that the Trial Court ought not to have rejected the petitioner's application under Order VII Rule 11 CPC but on the other hand should have framed a preliminary issue on the question of valuation, as contemplated under Section 12 of the Taml Nadu Court Fees and Suits Valuation Act. As such, the observations of the Trial Court rejecting the petitioner's application on the ground that no documents were produced alongwith the application under Order VII Rule 11 of the Civil Procedure Code to substantiate the nature of the property may not be proper. As such, the observations of the Trial Court rejecting the petitioner's application on the ground that no documents were produced alongwith the application under Order VII Rule 11 of the Civil Procedure Code to substantiate the nature of the property may not be proper. In view of Section 12 of the Tamil Nadu Court Fees and Suits Valuation Act as well as the well laid down propositions extracted above, I am unable to accept the submissions of the learned counsel for the respondent that the issue with regard to the valuation of the suit can be gone into during the course of trial. On the other hand, the issue requires to be tried as a preliminary issue. 11. In the light of the above observations, the order passed in I.A.No.278 of 2017 in O.S.No.152 of 2015 on the file of District Munsif, Hosur is set aside. Consequently, the application is restored to the file of the learned District Munsif, Hosur for the purpose of framing the preliminary issue touching upon the valuation of the suit in O.S.No.152 of 2015. On such framing of the preliminary issue, the Trial Court shall determine the valuation as per the procedure contemplated under Section 7 and 12 of the Tamil Nadu Court Fees and Suits Valuation Act and for the purpose of determining the market value, the court may take recourse to the procedures contemplated under Section 47 (AA) of the Indian Stamp Act. The entire exercise of determining the preliminary issue shall be completed within a period of three months from the date of receipt of a copy of this order. 12. With the above direction, this Civil Revision Petition stands ordered accordingly. No costs. Consequently, connected Miscellaneous Petition is closed.