JUDGMENT (Prayer: Criminal Revision Petition has been filed under Article 227 of the Constitution of India, seeking to set aside the fair and decretal order dated 18.10.2019 in I.A.No.43 of 2015 in O.S.No.243 of 2013 on the file of the Sub Judge of the Nilgiris at Ooty.) 1. This Criminal Revision Petition had been filed seeking to set aside the fair and decretal order dated 18.10.2019 in I.A.No.43 of 2015 in O.S.No.243 of 2013 on the file of the Sub Judge of the Nilgiris at Ooty. 2. The learned Counsel for the Petitioners submitted that the Petitioners had filed a Petition in I.A.No.43 of 2015 in O.S.No.243 of 2013. It is the contention of the learned Counsel for the Petitioners that the Petitioners are the Defendants in the suit in O.S.No.243 of 2013. The Petitioners had filed I.A.No.43 of 2015 in O.S.No.243 of 2013 for appointment of an Advocate Commissioner to find out the value of the suit property. Based on the Advocate Commissioner’s report, the value of the property can be considered by the Court after arriving at the value for the property whether the Court fee paid by the Respondents as Plaintiffs was correct is to be gone into. The Respondents/Plaintiffs in the suit vehemently objected to the same. Therefore, after due enquiry, the learned Sub Judge/Civil Judge Senior Division, Uthagamandalam had dismissed the I.A.No.43 of 2015 in O.S.No.243 of 2013. Aggrieved by the order of the learned Sub Judge/Civil Judge Senior Division, Uthagamandalam in dismissing the Petition in I.A.No.43 of 2015 in O.S.No.243 of 2013 filed by the Defendants, had preferred this Civil Revision Petition seeking to set aside the order. 3. The learned Counsel for the Petitioners invited the attention of this Court to the prayer in the plaint which reads as under: “1. To declare that the first Plaintiff has not gifted away the “A” schedule property in favour of the first defendant and direct the defendants to hand over the vacant possession of the “A” schedule property to the first Plaintiff. 2. To declare that the first Plaintiff has not gifted away the “B” & “C” schedule properties in favour of the first Defendant. 3. To declare that the gift deed bearing Document No.1189/2009, dated 23.09.2009 on the file of the Joint Sub Registrar, Ooty is null and void with respect to the suit schedule properties. 4. To order cost of the suit. 5. 3. To declare that the gift deed bearing Document No.1189/2009, dated 23.09.2009 on the file of the Joint Sub Registrar, Ooty is null and void with respect to the suit schedule properties. 4. To order cost of the suit. 5. To pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of this case and thus render justice.” 4. Further, he invited the attention of this Court to paragraph 18 of the plaint regarding court fee paid which reads as under: “18. The Plaintiffs value the suit for the purpose of court fee and jurisdiction for the relief of declaration that the first plaintiff has not gifted away the “A” schedule property in favour of the first defendant and also to recover the possession of the “A” schedule property from the defendants at Rs.133410/- and paid a sum of Rs.10,005.75/- as court fee under Section 25(a) of the Tamil Nadu Court Fee and Suits Valuation Act. The first plaintiff value the suit for the relief of declaration that the first plaintiff has not gifted away the “B” and “C” schedule property in favour of the first Defendant at Rs.1000/- and paid a sum of Rs.75.50/- as court fee under Section 25(d) of the Tamil Nadu Court Fees and Suits Valuation Act. The first Plaintiff value the relief of declaration that the gift deed bearing document No.1189/2009 of the Joint Sub Registrar, Ooty is null and void with respect to the suit schedule properties at Rs.1000/- and paid a sum of Rs.75.50/- as court fee under Section 25 (d) of the Tamil Nadu Court Fees and Suits Valuation Act.” 5. Also, he invited the attention of this Court to the List of Documents filed by the Respondents/Plaintiffs along with the Plaint which reads as under: “List of Documents 1. Legal notice dated 08.02.2011 from the first plaintiff to the first defendant. 2. Reply notice dated 16.02.2011 from the first defendant to the first plaintiff. 3. Certified copy of the sale deed bearing document No.397 of 1995. 4. Certified copy of the sale deed bearing document No.522 of 1995. 5. Certified copy of the gift deed bearing document No.1189 of 2009. 6. Urban land tax receipt dated 10.10.2012. 7. Certificate from St. John's Medical College Hospital Bangalore.” 6. The Petitioners herein as Defendants had filed written statement. 4. Certified copy of the sale deed bearing document No.522 of 1995. 5. Certified copy of the gift deed bearing document No.1189 of 2009. 6. Urban land tax receipt dated 10.10.2012. 7. Certificate from St. John's Medical College Hospital Bangalore.” 6. The Petitioners herein as Defendants had filed written statement. The relevant portion is extracted as under: “19. The Defendants respectfully submit that the Court fee paid by the Plaintiff on the Plaint is incorrect. The Plaintiff has deliberately undervalued all the relief claimed by him in para 19 of the Plaint with the sole motive of avoiding payment of proper Court fees. (i) So far as the relief claimed in para 19(1) is concerned, the Plaintiff is liable to pay Court fees on the market value of the Plaint 'A' Scheduled property i.e., on the value of 30 cents of land in R.S.No.1138/1 of Ootacamund Town on the date of Plaint which value will be not less than Rs.5 Lakhs per cent ie., Rs.1,50,00,000/-. In fact the value fixed by the Government for the S.No. in question for the purpose of registration of the documents is Rs.1500/- per sq. ft. From the Valuation Memo attached to the Plaint and furnished by the Plaintiff, it is seen that the Plaintiff has arrived at the value of the Plaint 'A' Schedule property at Rs.1,33,410/- on the basis of the Urban Land Tax Charged on the land in question ie., Rs.4,447/- x 30 times. The Defendants respectfully submit that 30 times of the survey assessment is applicable only for ryotwari land as stipulated under Section 7(2)(a) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 and the said principle cannot be applied for Urban Land which is a building site. Therefore, if the Plaintiff is serious in pursuing the relief prayed for under Para 19(1), then the Plaintiff has to pay Court fees at least on the value of Rs.1-1/2 Crores ie., Rs.11,25,000/-. (ii) So far as the relief claimed under Para 19(2) is concerned, the Plaintiff has deliberately omitted to claim the relief of possession when the Plaint 'B' and 'C' Schedule properties are in the possession of the 2nd Defendant by paying the necessary Court fees on the market value of the Plaint 'B' and 'C' schedule properties. (ii) So far as the relief claimed under Para 19(2) is concerned, the Plaintiff has deliberately omitted to claim the relief of possession when the Plaint 'B' and 'C' Schedule properties are in the possession of the 2nd Defendant by paying the necessary Court fees on the market value of the Plaint 'B' and 'C' schedule properties. These Defendants therefore submit that Sec. 34 of the Specific Relief Act would apply in the matter consequently the Plaint must face the consequences resulting therefrom. (iii) The Defendants would also like to add that the market value for the 1/9th share in the Plaint 'B' schedule property is Rs.6 Lakhs as th Government guideline value is Rs.1500/- per sq. ft. and Rs.21 Lakhs for 1/10th share in 'C' schedule property. Therefore, the Court fee payable for 'B' schedule property will be Rs.45,000/- and for 'C' schedule property will be Rs.1,57,500/-. (iv) The Plaintiff has also failed to pay proper Court fee for the relief claimed by him under Para 19(3) of the Plaint. When the very Gift Deed mentions the value of the properties gifted thereunder as Rs.25 Lakhs and when the relief sought for is with reference to the said Gift Deed to declare the same as null and void, the Plaintiff is liable to pay Court fees at least on the value mentioned in the Gift Deed viz., Rs.25 Lakhs and therefore, the Court fee of Rs.1,87,500/- is liable to be paid if not more. (v) Therefore, the total Court fee payable on the Plaint will not be less than Rs.11,25,000/- plus Rs.45,000/- plus Rs.1,57,500/- plus Rs.1,87,500/- ie., Rs.15,15,000/-. (vi) Hence the Defendants pray that the Hon'ble Court may be pleased to take up the question of payment of Court fees by the Plaintiff as the preliminary issue and the Hon'ble Court may be pleased to give a finding as to whether the Plaintiff has paid proper Court fee in the suit or not, and in the event of the Hon'ble Court coming to the conclusion that the Plaintiff has not paid the proper Court fees, then the Hon'ble Court may be pleased to direct the Plaintiff to pay proper Court fees as arrived at by the Hon'ble Court before proceeding further in the matter. It is further submitted that at that stage it will also come to light that this Hon'ble Court will have no pecuniary jurisdiction to try the suit as the value will be very much higher.” 7. The Plaintiffs seeks declaration of their 1/8 share in the properties. The Plaintiffs had to pay Court fee as per the Tamil Nadu Court Fees and Suits Valuation Act, 1955. He had sought declaration declaring the gift deed alleged to have been executed by the first Plaintiff (since deceased) as null and void. Therefore, the Court is to consider whether the Court fee paid by the Plaintiffs was correct. Further, the learned Counsel for the Defendants sought appointment of an Advocate Commissioner to visit the property and file his report regarding the valuation of the property. 8. The learned Counsel for the Petitioners/Defendants also invited the attention of this Court to Sections 7(2)(a), 10, 12 and 19 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 read as under: “7. Determination of market value (1) Save as otherwise provided, where the fee payable under this Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint. (2) The market value of land in suits falling under sections 25(a), 25(b), 27(a), 29, 30, 37 (1), 37 (3), 38,45 or 48 shall be deemed to be -- (a) where the land is ryotwariland-thirty times the survey assessment on the land: Provided that, where the landforms part of a survey field and is not separately assessed to revenue, the value of such part shall be deemed to be thirty times such proportion of the survey assessment as the part bears to the entire survey field. 10. Statement of particulars of subject-matter of suit and plaintiff's valuation thereof. - In every suit in which the fee payable under this Act on the plaint depends on the market value of the subject-matter of the suit, the plaintiff shall file with the plaint, a statement in the prescribed form, of particulars of the subject-matter of the suit and his valuation thereof unless such particulars and the valuation are contained in the plaint. 12. 12. Decision as to proper fee in other Courts - (1) In every suit instituted in any Court other than the High Court, the Court shall, before ordering the plaint to be registered, decide on the materials and allegations contained in the plaint and on the materials contained in the statement, if any, filed under section 10 the proper fee payable thereon, the decision being however subject to review, further review and correction in the manner specified in the succeeding sub-sections. (2) 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. (3) A defendant added after issues have been framed on the merits of the claim may, in the written statement filed by him, 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, and if the Court finds that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient, the Court shall follow the procedure laid down in sub-section (2). All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim, and if the Court finds that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient, the Court shall follow the procedure laid down in sub-section (2). Explanation.-- Nothing in this sub-section shall apply to a defendant added as a successor or a representative in interest of a defendant who was on record before issues were framed on the merits of the claim and who had an opportunity to file a written statement pleading that the subject-matter of the suit was not properly valued or that the fee paid was not sufficient. (4) (a) Whenever a case comes up before a Court of Appeal, it shall be lawful for the Court, either of its own motion or on the application of any of the parties, to consider the correctness of any order passed by the lower Court affecting the fee payable on the plaint or in any other proceeding in the lower Court and determine the proper fee payable thereon. Explanation.-- A case shall be deemed to come before a Court of Appeal even if the appeal relates only to a part of the subject-matter of the suit. (b) If the Court of Appeal decides that the fee paid in the lower Court is not sufficient, the Court shall require the party liable to pay the deficit fee within such time as may be fixed by it. (c) If the deficit fee is not paid within the time fixed and the default is in respect of a relief which has been dismissed by the lower Court and which the appellant seeks in appeal, the appeal shall be dismissed, but if the default is in respect of a relief which has been decreed by the lower Court, the deficit fee shall be recoverable as if it were an arrear of land revenue. (d) If the fee paid in the lower Court is in excess, the Court shall direct the refund of the excess to the party who is entitled to it. (d) If the fee paid in the lower Court is in excess, the Court shall direct the refund of the excess to the party who is entitled to it. (5) All questions as to value for the purpose of determining the jurisdiction of Courts arising on the written statement of a defendant shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. Explanation.-- In this section, the expression "merits of the claim" refers to matters which arise for determination in the suit, not being matters relating to the frame of the suit, misjoinder of parties and causes of action, the jurisdiction of the Court to entertain or try the suit or the fee payable but inclusive of matters arising on pleas of res judicata, limitation and the like. 19. Inquiry and Commission. - For the purpose of deciding whether the subject-matter of a suit or other proceeding has been properly valued or whether the fee paid is sufficient, the Court may hold such inquiry as it considers proper and may, if it thinks fit, issue a Commission to any proper person directing him to make such local or other investigation as may be necessary and to report thereon to the Court.” 9. The learned Counsel for the Petitioners/Defendants further submitted that I.A.No.43 of 2015 in O.S.No.243 of 2013 is filed for preliminary issue regarding suit valuation. The learned Counsel for the Petitioners/Defendants also invited the attention of this Court to the list of documents filed wherein Adangal was not filed. The plaintiff had wantonly not filed Adangal for the Court to arrive at a conclusion regarding the valuation of the property. It is the contention of the Petitioners/Defendants that the learned Sub Judge/Civil Judge Senior Division, Uthagamandalam, while dismissing the application for appointment of Advocate Commissioner had not referred to these documents The relevant portion of the order read as under: 10. The learned Sub Judge/Civil Judge Senior Division, Uthagamandalam, in the order dismissing the preliminary issue regarding Court Fees and Suits Valuation had not at all mentioned any of the documents cited by the Respondents/Plaintiffs in the plaint. Therefore, the order dismissing the application in I.A.No.43 of 2015 in O.S.No.243 of 2013 filed by the Petitioners/Defendants seeking appointment of an Advocate Commissioner to find out the value of the property does not hold good. It is not a well reasoned order. Therefore, the order dismissing the application in I.A.No.43 of 2015 in O.S.No.243 of 2013 filed by the Petitioners/Defendants seeking appointment of an Advocate Commissioner to find out the value of the property does not hold good. It is not a well reasoned order. Therefore, it has to be set aside and the Advocate Commissioner should be appointed. Therefore, the learned Counsel for the Petitioners/Defendants sought to allow this Criminal Revision Petition and set aside the order dated 18.10.2019 passed in I.A.No.43 of 2015 in O.S.No.243 of 2013, by the learned Sub Judge/Civil Judge Senior Division, Uthagamandalam. 11. In support of his submission, the learned Counsel for the Petitioners/Defendants relied on the decision of this Court in the case of Arokiasamy -vs- Periyanagam reported in 2009 SCC OnLine Mad 220 wherein this Court had observed as under: “7. As has been already highlighted supra without being tatalogous, I would reiterate that the object of Section 7(2)(a) of the Act should be taken note of. It is quite obvious and axiomatic that Legislators intended that agriculturists should be favoured. An agriculturist should not be compelled to pay through his nose huge Court fee, based on ordinary market value in order to seek redressal, if his property is attempted to be trespassed or if he wants to recover his property. If a poor agriculturist is compelled to pay ad valorem Court fee, then it will be discouraging for him to approach the Court. With that intention alone Section 7(2)(a) of the Act came into vogue and that cannot be misused by other persons, who are converting the lands into house sites. Hence, in this view of the matter it is clear that the District Judge fell into error in deciding the C.M.A.” 12. The learned Counsel for the Respondents/Plaintiffs vehemently objected to the submissions of the learned Counsel for the Petitioners/Defendants that the suit is of the year 2013 and I.A.No.43 of 2015 is filed only in the year 2018 with an intention to drag the proceedings the Defendants had filed this Interlocutory Application and challenging the order dismissing the I.A.No.43 of 2015, this Civil Revision Petition had been filed in the year 2020 and kept pending thereby preventing the trial Court from proceeding with the trial. As per the plaint averments, the Respondents/Plaintiffs had sought declaration that alleged gift deed by the first Plaintiff in favour of the first Defendant who is the elder brother of the Plaintiff as null and void and non-est in law. Therefore, the finding of the learned trial Judge that to determine the value of the property, the appointment of Advocate Commissioner is not at all necessary as the property is an agricultural property. The learned Counsel for the Respondents/Plaintiffs invited the attention of this Court to the order of the learned Sub Judge/Civil Judge Senior Division, Uthagamandalam, wherein the learned Sub Judge had relied on the ruling in Sorna Pandy Nadar -vs- Sivasubramania Nadar [1976-TNLJ-69]. The order passed by the learned trial Judge need not be set aside as it is a well reasoned order. Further, the learned Counsel for the Respondents/Plaintiffs submitted that the suit itself is part heard stage. In the suit, the same can be considered by adducing evidence regarding the valuation of the properties by producing documents either revenue records from the Revenue Officials viz., Kist receipt and market value by summoning the documents from the Revenue as well as Registration Department. For determining the value of the property, the Advocate Commissioner need not be appointed. The Court has the powers to summon documents from officials concerned. The Respondents/Plaintiffs or the Petitioners/Defendants can also summon the officials with relevant registers regarding the “guideline value/market value” in support of their contentions or as Court witness during trial. 13. In support of his submission, the learned Counsel for the Respondents/Plaintiffs relied on the decision of this Court in the case of R.C.Sundravalli -vs- T.D. Shakila reported in CDJ 2001 MHC 401 wherein this Court had observed as under: “17. Any way, the narration of events shows that the question relating to Court fee has been raised not before the first hearing of the suit nor before evidence was recorded on the merits of the claim. The learned counsel for the petitioner repeatedly urged that there is no delay on his part because additional issues were framed only on 20.9.99 and the application had been filed on 22.9.99. But paragraph 3 of the counter filed by the respondent shows that even the question relating to the payment of Court fees itself was carried in the additional statement only after the trial had commenced and P.W.1's evidence has been recorded. But paragraph 3 of the counter filed by the respondent shows that even the question relating to the payment of Court fees itself was carried in the additional statement only after the trial had commenced and P.W.1's evidence has been recorded. (Italics supplied). This is not contradicted. So it is clear that it is belated. The delay is not with reference to the date on which additional issues were framed. The delay is with reference to the stage at which it is raised in view of the provisions of Section 12(2) of the Act. I see no reason to interfere with the order of the Court below. The C.R.P. is dismissed with costs. CMP 5690 of 2001 is closed.” 14. On consideration of the rival submissions and on perusal of the order passed by the learned Sub Judge/Civil Judge Senior Division, Uthagamandalam, it is found that the order passed in I.A.No.43 of 2015 in O.S.No.243 of 2013 does not warrant any interference by this Court under Article 227 of the Constitution of India as it is a well reasoned order. Further, from the submissions of the learned Counsel for the Respondents/Plaintiffs the suit itself had proceeded with the trial and now it is in the stage of D.W-1 cross examination. The ruling relied on by the learned Counsel for the Petitioners/Defendants in Arokiasamy -vs- Periyanagam reported in 2009 SCC OnLine Mad 220 is with regard to Court fees wherein the learned Judge had rejected the contention regarding the valuation of the Court fees stating that based on the kist the value can be considered. Whereas in the revision, the learned Judge of this Court had held that there is a proof that the property in dispute has a building which is assessed to property tax. Therefore, the valuation as per the market value of the property had to be decided regarding Court Fees Act and not as per the kist value. Kist value is only for agricultural property. Here also in this case, the property shown in the Item A, B and C of plaint schedule property are in municipal limits which are not agricultural properties which are based on urban land tax. Kist value is only for agricultural property. Here also in this case, the property shown in the Item A, B and C of plaint schedule property are in municipal limits which are not agricultural properties which are based on urban land tax. Therefore, regarding market value or property tax assessed by the municipality, the same can be adduced as evidence by summoning official witnesses either from Revenue Department viz., Tahsildar or officials above the rank of Tahsildar from the Revenue Department and regarding Municipal Tax either the Commissioner of Municipality or the officer under him who is vested with the powers of collection of property tax by summoning them as witnesses either the Plaintiffs or the Defendants can adduce evidence before the Court concerned either as Defendants or Plaintiffs side witness or even as Court witness so that the doubts regarding the valuation of the property and assessment of tax either as agricultural land or as house site or house can be decided before pronouncing the judgment on all issues. If the trial judge arrives at a conclusion that the pecuniary jurisdiction is ousted based on evidence produced by either of the parties by summoning the officials of the Revenue or Municipality or Registration Department. The learned Judge on appreciation of the same, can restrict his finding to the preliminary issue and address the learned District Judge to withdraw the suit from the file of the learned District Judge and the learned District Judge can proceed with the hearing/arguments and pronounce the judgment. 15. In the light of the above discussion, the ruling placed by the learned Counsel for the Petitioners/Defendants also is found acceptable to the facts of this case regarding preliminary enquiry. The learned Counsel for the Petitioners/Defendants submitted that for arriving at a valuation of the property an Advocate Commissioner is to be appointed cannot at all be accepted since the trial had proceeded, both parties can adduce evidence by summoning officials of either the Municipality or Revenue Department of the Nilgris District as witness to the Plaintiffs or witness to Defendants or as Court witness and thereby helping the Court to arrive at a just conclusion regarding the valuation of the property. For this, an Advocate Commissioner is not at all required. For this, an Advocate Commissioner is not at all required. Therefore, the order of the learned Sub Judge/Civil Judge Senior Division, Uthagamandalam does not warrant any interference by invoking the powers of High Court under Article 227 of the Constitution of India. The rulings relied on by the learned Counsel for the Respondents/Plaintiffs is applicable to the case as the trial in the suit had proceeded at the stage of Defendant's witnesses. In the light of the above discussion, the contention of the learned Counsel for the Revision Petitioners/Defendants before the trial Court is rejected. The contention of the learned Counsel for the Respondents/Plaintiffs is found acceptable. Therefore, in the light of the above rulings cited by both parties, it is not a fit case for interference by this Court. In the result, this Civil Revision Petition is dismissed. The order dated 18.10.2019 passed by the learned Sub Judge/Civil Judge Senior Division, Uthagamandalam in I.A.No.43 of 2015 in O.S.No.243 of 2013 is confirmed. The parties to the dispute are directed to cooperate with the trial and dispose of the case within a reasonable period. If the parties desire to adduce evidence on this point both parties are at liberty to summon the official witness either from the Revenue Department regarding assessment of kist or Municipal authorities regarding property tax or Registrar of Registration Department regarding market value of the property either as Court witness or as witness in respect of their contentions. Consequently, the connected miscellaneous petition is closed.