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2021 DIGILAW 2621 (MAD)

Tamilselvan v. Chellammal

2021-09-29

A.D.JAGADISH CHANDIRA

body2021
ORDER : The Civil Revision Petition has been filed to set aside the fair and decreetal order dated 30.04.2012 made in I.A.No.739 of 2011 in O.S.No. 1457 of 2010 on the file of the II Additional District Munsif, Tiruchirappali. 2. The petitioners are defendants 3,4,7,9,10 and 12 in O.S.No.1457 of 2010 filed by the respondents. The suit has been filed by the respondents/plaintiffs seeking for declaration and injunction in respect of suit scheduled property. The petitioners have filed IA No.739 of 2011 seeking to reject the plaint under Order 7 Rule 11 of the Code of Civil Procedure on the ground of limitation and under valuation. The trial Court by order dated 30.04.2012 dismissed the petition against which the present revision has been filed. 3. The learned counsel for the petitioners would submit that the petitioners are the trustee of M/s.Kottapillai Educational Trust are the defendants 3,4,7,9,10 and 12 in O.S.No. 1457 of 2010. The suit was filed by the respondents/plaintiffs seeking to declare them as owners of the suit scheduled property. The suit scheduled property was the self acquired property of Rengasamy Muthraja S/o. Thiruvengada Muthuraja and that on 21.06.2004 the said Rengasamy Muthuraja had executed a general power of attorney empowering the second defendant to deal with the property and the said property was sold to the trust of the defendant for valuable consideration on 23.07.2004. The original title deeds along with earlier title deeds were also handed over to the petitioners and the petitioners are in possession of the same. At that time of purchase, the suit property was registered as house site and on the date of purchase the value of the property was Rs.2,41,000/-. The respondents/plaintiffs while filing the suit for declaration have not properly valued the suit in accordance with Section 40 of the Tamil Nadu Court Fee and Suit Valuation Act and they have wantonly under valued the suit. Moreso, the suit for declaration has been filed without seeking to cancel the registered sale deed dated 23.07.2004 and the suit has also been filed beyond the period of limitation. The petitioners had filed petition seeking to reject the plaint on the ground of under valuation and limitation. The Trial Court had dismissed the same, without returning any finding with regard to the point of under valuation of the suit and thereby the present revision has been filed. 4. The petitioners had filed petition seeking to reject the plaint on the ground of under valuation and limitation. The Trial Court had dismissed the same, without returning any finding with regard to the point of under valuation of the suit and thereby the present revision has been filed. 4. The learned counsel would further submit that whenever the Court is called up to decide the issue relating to valuation of the suit property and the payment of court fee, the Court has to consider the issue as per provision of Section 12(2) of the Tamil Nadu Court Fee and Suit valuation Act and the Court will have no discretion and it has to consider the same as a preliminary issue. The learned counsel would rely on the judgement of the Hon'ble Division Bench of this Court in S.N.S Sukumaran vs. C.Thangamuthu reported in 2012 (5) CTC 705 and submit that whenever the defendants come forward with an application disputing the valuation of the property contending 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. She would further submit that the Court cannot seize the issue along with other issues since the provisions under Section 12(2) of the Tamil Nadu Court Fee and Suit Valuation Act, 1955 is a substantial law and it shall prevail over the provisions in the Order 14 Rule 2 of the Code of Civil Procedure which is a procedural law. She would further submit that the Trial Court erred in not deciding the same and if the issue is not considered the petitioners will be loosing a chance as the suit is now at the stage of pre framing of issues and would pray for setting aside the order. 5. The learned counsel for the respondents/plaintiffs would contend that the respondents have disputed the very sale itself and even though as per the alleged sale deed the value of the property is @ Rs. 2,41,000/- there is nothing on record to show that the property was converted and sold as housing site. 5. The learned counsel for the respondents/plaintiffs would contend that the respondents have disputed the very sale itself and even though as per the alleged sale deed the value of the property is @ Rs. 2,41,000/- there is nothing on record to show that the property was converted and sold as housing site. He would further submit that other than the averments in para 22 that the owner of the adjacent land had converted their land as lay out and the sources of irrigation was blocked, no other materials have been produced to show that the suit scheduled properties was converted and sold as house site and that the suit was undervalued. He would further submit that if at all the petitioners are aggrieved with the valuation of the suit, the proper remedy is to only file a separate petition under Section 12(2) of the Tamil Nadu Court Fee and Suit Valuation Act and since such a petition was not filed, the Trial Court had dismissed the petition seeking to reject the plaint. 6. Heard the learned counsel appearing on either side and persued the material available on record. 7. Though a petition in IA No.739 of 2011 had been filed under Order 7 Rule 11 seeking to reject the plaint, a specific plea has been raised by the petitioners questioning the valuation of the suit. It is the claim of the petitioners that the suit schedule properties are housing sites and that the plaintiffs have wrongly classified the suit scheduled property as agricultural property and have under valued the suit. Though a separate petition under Section 12 (2) of the Tamil Nadu Court Fee and Suit Valuation Act has not been filed, one of the plea raised under Order 7 Rule 11 is questioning the valuation of the suit. 8. In S.N.S Sukumaran vs. C.Thangamuthu reported in 2012 (5) CTC 705 referred supra a Division Bench of this Court had made it clear that whenever the defendants come forward with an application disputing the valuation of the property or contending 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 take up the issue along with other issues. This Court has also held that since the provision under Section 12 (2) of the Tamil Nadu Court Fee and Suit valuation Act, 1995 is a substantial law it shall prevail over Order 14 Rule 2 of the Code of Civil Procedure, which is a procedural law and the Trial Court has to render a finding with regard to the same as preliminary issue. 9. Therefore this Court is of the opinion that though a separate petition under Section 12 of the Tamil Nadu Court Fee and Suit Valuation Act, 1955 has not been filed, the Court can treat the petition as one filed under Sections 7 and 12 of the Tamil Nadu Court Fee and Suit valuation Act. In view of the same, the order dated 30.04.2012 passed in IA No. 739 of 2011 is O.S.No.1457 of 2010 is set aside and the matter is remitted back to the trial court to decide the issue of valuation of the suit alone as a preliminary issue. 10. The learned District Munsif, Trichy shall frame a preliminary issue touching upon the valuation of the suit in O.S.No.1457 of 2010. On framing such a preliminary issue the Trial Court shall determine the valuation as per the procedure contemplated under Section 7 and 12 of the Tamil Nadu Court Fee and Suit Valuation Act, on the date of filing of the suit on 09.10.2010 and for the purpose of determining the market value the court may adopt the procedure as contemplated under Section 47(A) of the Indian Stamp Act after affording necessary opportunities to all parties concerned . The entire exercise of determining the issue regarding valuation of the suit shall be completed within a period of four months from the date of receipt of a copy of this Court. It is made clear that this Court has not rendered any finding with regard to the issue of limitation and the same requires to be decided after full fledged trial. 11. With the above direction, the Civil Revision Petition stands disposed of. No costs.