Research › Search › Judgment

Madras High Court · body

2018 DIGILAW 3511 (MAD)

Palanisamy v. Athiyappan

2018-10-04

P.T.ASHA

body2018
JUDGMENT P.T. Asha, J. The above Civil Revision Petition is filed challenging the order passed by the Learned District Munsif, Rasipuram in I.A.No.870 of 2010 in O.S.No.153 of 2010 in and by which the learned Judge dismissed the application filed by the revision petitioner defendant under Order VII Rule 11 r/w Section 151 of C.P.C to reject the plaint on the ground that the suit has been undervalued and consequently questioning the jurisdiction of the Court to hear the suit. 2. The facts in brief are as follows: The first respondent herein has filed a suit in O.S.No.153 of 2010 for declaring that he is the absolute owner of the entire suit property and the consequential injunction and the second relief sought for is to set aside the sale deed dated 21.06.2010 executed by the second respondent in favour of the revision petitioner herein. 3. On receiving summons in the above suit the revision petitioner has come forward with the impugned petition stating that even under the sale deed dated 21.06.2010 the value of the property has been shown Rs. 5,50,000/- and considering this fact, the valuation of the suit as Rs. 2,000/- under Section 25 (b) for the relief of declaration and injunction and under Section 25 (d) for setting aside and declaring the sale deed as null and void is erroneous and the first respondent has deliberately undervalued the suit. 4. This application has been dismissed by the learned District Munsif, Rasipuram as against which the revision petition has been filed. 5. Mr.C.Prabakaran appearing on behalf of the revision petitioner would contend that the sale deed in respect of which the declaration is sought for is in effect a prayer for setting aside the sale which has to be valued under Section 40 (1) of Tamil Nadu Court Fees and Suits Valuation Act and not under Section 25(d). Therefore the suit ought to have been valued at Rs. 2,75,000/-. Further with reference to the relief of declaration of the title and injunction, the market value of the property as seen in the sale deed dated 21.06.2010 is itself Rs. 5,50,000/- and therefore the plaintiff has deliberately undervalued the suit at Rs. 2,000/-. under Section 25(d). Therefore the suit ought to have been valued at Rs. 2,75,000/-. Further with reference to the relief of declaration of the title and injunction, the market value of the property as seen in the sale deed dated 21.06.2010 is itself Rs. 5,50,000/- and therefore the plaintiff has deliberately undervalued the suit at Rs. 2,000/-. under Section 25(d). The learned Judge according to the counsel has clearly erred in dismissing the application on the ground that in the event of the Court coming to the conclusion that the suit is undervalued, the differential amount can always be collected at later point of time. 6. Heard the submissions and perused the papers. 7. The observation of the learned Judge that in the event of the Court coming to a conclusion at a later point of time that the suit was undervalued and thereafter the Court could collect the differential amount is in my opinion totally erroneous. The value of the suit assumes significance because it is the valuation that is shown in the suit that determines the jurisdiction of the Court. In the instant case, if the Court had considered the revision petitioner's case and proceeded to examine the valuation and had come to a conclusion that the suit ought to have been valued on the value shown in the sale deed then the learned District Munsif, Rasipuram would not have the jurisdiction to entertain the suit. Therefore the approach of the learned District Munsif is totally erroneous. This Court has time and again held that in the event of an objection being raised with reference to payment of Court fees, that issue has been considered and disposed of at the very first instance this dicta has been totally ignored by the learned Judge. 8. A division Bench of this Court in its judgment S.N.S. Sukumaran Vs. C.Thangamuthu, (2012) 5 CTC 705 . The following issue was referred to the Bench: "Whether payment of Court fee on the plaint being a jurisdictional issue has to be decided as a preliminary issue. The bench after considering the various judgments on the point had answered the reference at Para 31 as follows : 31. C.Thangamuthu, (2012) 5 CTC 705 . The following issue was referred to the Bench: "Whether payment of Court fee on the plaint being a jurisdictional issue has to be decided as a preliminary issue. The bench after considering the various judgments on the point had answered the reference at Para 31 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. 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. 9. I therefore deem it fit to remit the Interlocutory Application back to the learned District Munsif, Rasipuram to consider the issue, inviting both the parties to make their submissions on the issue of valuation of the suit and Court fees paid thereon. The said exercise shall be completed within the period of two months from the date of receipt of a copy of this order. 10. Accordingly, the Civil Revision Petition is disposed of with above lines. No Costs. Consequently, Connected Miscellaneous Petition is also closed.