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2021 DIGILAW 328 (MAD)

Karikalan v. Rangammal

2021-02-01

V.BHAVANI SUBBAROYAN

body2021
ORDER : This Civil Revision Petition has been filed against the fair and decreetal order dated 10.11.2020 passed in I.A.No.1 of 2019 in O.S.No.73 of 2007 on the file of the Sessions Judge, Mahila Court, Kanchipuram District at Chengalpet. 2. The case of the petitioner is that he is a 2nd defendant in the suit in O.S.No.73 of 2007 and the said suit was filed by the respondents 1 to 8 for partition and other reliefs. The Patta is standing in the name of the 9th respondent/1st defendant and the same was transferred in the name of the petitioner herein. The plaintiffs while initiating the suit proceedings have not paid the appropriate Court fees and they have no right to pay Court fee as per Section 37(2) of the TNCF Act 14, 1955. The petitioner/2nd defendant has filed an application under Section 12(3) of the TNCF Act 14 of 1955 in I.A.No.1 of 2019 before the Sessions Judge, Mahila Court, Kanchipuram District, Chengalpet, stating that the valuation adopted by the plaintiffs and the Court fee paid by them are wrong and the said issue has to be decided as a preliminary issue. 3. Denying the averments in the said application, a counter statement was filed by the 6th respondent which was adopted by the other respondents stating that originally, the suit was filed in the month of January 2007 and it was posted in the list on July 2011. The P.W.1 was examined in chief and then the matter was posted for his cross examination. At that point of time, the 3rd plaintiff had died and the respondents 1 to 8 had taken steps to implead the legal heirs. The 9th respondent/1st defendant had filed an application in I.A.No.662 of 2015 to take the Court fees as preliminary issue and the same was dismissed on merits. The 9th respondent had voluntarily created a fraudulent settlement deed dated 04.08.2011 in favour of the petitioner in respect of the suit property. Therefore, the petitioner has no locus standi to proceed the case as he is an absolute owner of the suit property. It is further stated that the issue regarding the payment of Court fees can be raised before the commencement of trial. The I.A.No.662 of 2015 filed by the 9th respondent seeking to take the Court fee as preliminary issue was already dismissed on merits. It is further stated that the issue regarding the payment of Court fees can be raised before the commencement of trial. The I.A.No.662 of 2015 filed by the 9th respondent seeking to take the Court fee as preliminary issue was already dismissed on merits. Hence, the petitioner being legal heir of the 9th respondent cannot seek for the same remedy. 4. The Court below after hearing the parties dismissed the said I.A. on the ground that the petitioner being son of the 1st defendant is not entitled to seek the relief to try the Court fee issue as preliminary issue since the evidence of P.W.1 was already recorded and the petitioner having been impleaded in the suit due to the settlement deed executed by the 1st defendant. Aggrieved by the said order, the petitioner has filed this petition before this Court. 5. The learned counsel for the petitioner submitted that the Trial Court erred in dismissing the application to try the issue of valuation of suit and payment of Court fee as a preliminary issue when the petitioner/2nd defendant was impleaded as a party to the suit pursuant to the order passed in I.A.No.185 of 2018 dated 06.09.2018. The respondents 1 to 8 filed the suit for partition by making a false plea alleging that they are in joint possession and enjoyment of the suit property and paying a fixed Court fee as per Section 37(2) of the TNCF Act 14 of 1955. The 9th respondent/1st defendant was issued Patta in respect of the suit property even before filing of the suit and he was in absolute possession and enjoyment of the suit property. Subsequently, he settled the suit property in favour of his son who is the petitioner herein vide Registered Settlement Deed dated 04.08.2011 under Doc.No.4702 of 2011 on the file of the Sub Registrar Office, Padappai and mutation was effected in favour of him and Patta was also issued in his favour. 6. The learned counsel for the petitioner further submitted that Section 12 of TNCF Act is not applicable to the case of the petitioner as he has been impleaded in the suit as an independent party and not as a successor to the 1st defendant. 6. The learned counsel for the petitioner further submitted that Section 12 of TNCF Act is not applicable to the case of the petitioner as he has been impleaded in the suit as an independent party and not as a successor to the 1st defendant. The suit was instituted as against the petitioner, newly impleaded party, only from the date of filing of the impleading petition in I.A.No.185 of 2018 as per Section 21 of the Limitation Act. The issue of proper valuation of the suit and payment of appropriate Court fees is independent of other issues and it should be decided as a preliminary issue. 7. Heard the learned counsel for the petitioner and perused the materials available on record. 8. From the pleadings of the petitioner, it is seen that the respondents 1 to 8/plaintiffs are not in joint possession of the suit property and Patta is standing in the name of the petitioner herein. The respondents 1 to 8 have no right to pay Court fee as per Section 37(2) of the TNCF Act 14, 1955 and the valuation adopted by them has to be appropriately mutated. 9. On going through the materials on record, it could be seen that the suit was filed in the year 2007 and the trial was commenced in the year 2011. The P.W.1 was examined in chief and then the matter was posted for his cross examination. At that point of time, the 3rd plaintiff had died and the respondents 1 to 8 had taken steps to implead the legal heirs. The 9th respondent/1st defendant had filed an application in I.A.No.662 of 2015 to take the Court fees as preliminary issue and the same was dismissed on merits by the Court below. In the year 2011, a fraudulent settlement deed dated 04.08.2011 had been executed by the 1st defendant in favour of the petitioner. When the trial has commenced, the petitioner has filed an application under Section 12(3) of the TNCF Act 14 of 1955 to try the Court fee issue as preliminary issue. The said application was dismissed by the Court below on the ground that the same lacks merits. 10. The petitioner herein who is the son of the 1st defendant has filed this petition seeking indulgence of the Court and has raised some objection stating that he has been impleaded in the suit as an independent party. The said application was dismissed by the Court below on the ground that the same lacks merits. 10. The petitioner herein who is the son of the 1st defendant has filed this petition seeking indulgence of the Court and has raised some objection stating that he has been impleaded in the suit as an independent party. Hence, the issue of Court fee has to be considered by the Court once again. When it has been found that the issue of Court fee was already considered by the Court and dismissed on merits, the petitioner's contention that he is an independent defendant and once again the Court fee issue has to be considered by the Court, cannot be sustained. The petitioner’s further contention is that he was impleaded in the suit as 2nd defendant only after obtaining an order in the impleading petition in I.A.No.185 of 2018 as per Section 21 of the Limitation Act and the commencement of trial prior to impleading him as a party in the suit is not binding on him and cannot be put against him for filing an application under Section 12(2) of the TNCF Act 14 of 1955. Once the petitioner was impleaded as a party in the suit, he stepped into the shoes of his father and he is alleged to have been sued with the property by way of settlement deed executed by his father. When that being the case, the issue which was already raised by the father was considered and dismissed on merits, the said issue cannot be raised by the petitioner once again by stating that he has been treated as an independent party and not as a successor to his father. 11. When the Court below has already decided the issue of Court fee on merits, the contention of the petitioner that there is no bar under Section 12(2) of the TNCF Act 14, 1955 to seek the relief to try the Court fee as preliminary issue cannot be considered. As per section 12(2) of the TNCF Act 14, 1955, the petitioner has to satisfy the criteria for invoking the provision stipulated under the said section. As per section 12(2) of the TNCF Act 14, 1955, the petitioner has to satisfy the criteria for invoking the provision stipulated under the said section. Section 12(2) of the TNCF Act 14, 1955states that 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. 12. On going through the above section, it is clear that the defendants are entitled to raise the plea of non payment of appropriate Court fees before the Court, immediately after filing the written statement. It is evident that the father of the petitioner initially filed I.A.No.662 of 2015 and raised the issue of Court fee as preliminary issue, but the said claim was dismissed by the Court below after deciding the same on merits. The trial has already been commenced and the petitioner being the son of the 1st defendant cannot seek the same relief by filing an another application in the suit. He has already filed a written statement before the Court below and now he cannot raise the said plea by stating that he has been impleaded as an independent party in the suit. 13. From the above section, it is also clear that the petitioner being a successor to the 1st defendant who is his father is not entitled for the relief sought by him to try the Court fee issue as preliminary issue as already the trial has commenced and the 1st defendant has already executed his remedy by filing an application in I.A.No.662 of 2015, wherein, he has failed in his claim. The petitioner’s claim that he has been impleaded as an independent party in the suit and the commencement of trial prior to impleading him as a party in the suit is not binding on him and the same cannot be put against him for filing the application under Section 12(2) of the TNCF Act 14, 1955, is not sustainable and has to be rejected. 14. 14. Hence, this Court is of the view that the Court below was right in dismissing the I.A.No.1 of 2019 filed by the petitioner seeking for the relief to try the Court fee issue as preliminary issue. 15. Accordingly, this Civil Revision Petition is dismissed. No costs. Consequently, connected miscellaneous petition is closed.