Prayer: Civil Revision Petition under Article 227 of the Constitution of India to allow the Revision Petition and set aside the fair and decretal order made in I.A No. 114 of 2010 in O.S No. 154 of 2008 dated 30.07.2010 passed by the Additional District Munsif, Cuddalore.
JUDGMENT
1. The 4th Defendant in O.S No. 154 of 2008 on the file of the Additional District Munsif, Cuddalore is the Revision Petitioner.
2. The Respondent/Plaintiff filed the above Suit for declaration of her 1/3rd share in the suit property and for delivery of vacant possession or in the alternative preliminary decree for partition of her 1/3rd share in the suit property and for mesne profits.
3. The case of the Plaintiff/Respondent as per the Plaint was that the properties are ancestral joint family-coparcenary properties belonging to the Plaintiff and Defendants 1 and 2 and Defendants 1 and 2 sold the properties to the 3rd Respondent under two registered Sale Deed, dated 10.9.1997 and 11.9.1997 for a very low price and the Sale Deed are not binding on her and the 4th Defendant, namely, the Revision Petitioner herein claims to have purchased those properties from the 3rd Defendant and therefore, the Plaintiff filed the Suit for the relief as stated above.
4. The Revision Petitioner/4th Defendant filed a statement, disputed the claim of the Plaintiff in the suit property and also stated in para 10 of the statement that the framing of Suit is not correct and without seeking the relief for setting aside the sale by paying necessary Court fees, the Suit for partition is not maintainable. Thereafter, the Trial commenced and PW1 was examined in chief by filing proof of Affidavit and when the case was posted for cross-examination for PW1, the 4th Defendant filed I.A No. 114 of 2010 under Order 14, Rule 2, read with Section 151 of C.P.C to decide the valuation of the suit property and jurisdiction of the Court as a preliminary issue and that Petition was dismissed and against the same this Revision Petition is filed.
5. it is submitted by the learned Counsel for the Revision Petitioner Mr. Senthil Swamy that even according to the Respondent/Plaintiff, the properties were sold under two documents referred to in the plaint and as per the two Sale Deeds, the properties were sold for a sum of Rs. 3,77,571/- and Rs. 1,66,116/- in the year 1997 and the Suit was filed in the year 2008 and the value of the property is more than Rupees 15 lakhs and therefore, the District Munsif Court does not have jurisdiction to decide the issue and the Suit ought to have filed before the Sub-Court and therefore, the Court ought to have taken the issue of jurisdiction and valuation of the suit property as a preliminary issue. He further contended that even though the Petition was filed under Order 14, Rule 2, the Petition ought to have treated as a Petition filed under Section 12 of the Tamil Nadu Court Fees and Suits Valuation Act and in that case, the issue has to be decided as a preliminary issue and no option is given to the Court and quoting of wrong provision of law is not a ground to deny the relief and in support of his contention, the learned Counsel relied upon my judgment reported in Regila Prem v. Chellappan, 2010 (3) MWN (Civil) 722 : 2010 (5) LW 334.
6. On the other hand, Mr. D. Ravichandran, learned Counsel for the Respondent submitted that the Revision Petitioner in the Written Statement has not stated that the Suit is undervalued and he was challenging the framing of the Suit stating that the Suit as framed is not maintainable and the Suit ought to have been filed to set aside the Sale Deed and therefore, the plea now raised cannot be considered. The learned Counsel further submitted that even in the Application filed under Order 14, Rule 2, it has not been stated that the properties ought to have been valued as per the current market price and should not be valued on the basis of the Kisth and therefor, it is not open to the Revision Petitioner to contend that the issue must be taken as a preliminary issue. In support of his contention, the learned Counsel for the Respondent relied upon the judgment of the Honourable Court in V.S Jagadeesan v. Madar Saheb, 2005 (2) MLJ 467; Suhrid Singh @ Sardool Singh v. Randhir Singhs, 2010 (2) MWN (Civil) 221 (SC) : AIR 2010 SC 2807.
7. It is seen from the Plaint that the property is described as property situated in old Survey No. 239 of an extent of 9.91 acres and new Survey No. 102/2 Hectares 4-39-0 and old Survey No. 240/2 of an extent of 4.36 acres and New Survey No. 103/3 Hectares 1-76-50. No doubt in the Plaint, it has not been stated that the properties are agricultural properties or ryotwari lands. Nevertheless, the value of the kisth was mentioned in the Schedule and the properties was valued at 30 times of the kisth. Now, the contention of the Revision Petitioner is admittedly in the year 1997, the properties are valued more than Rupees 5 lakhs and therefore, it is evident from those documents that the properties are worth more than 5 lakhs and therefore, the District Munsif Court has no jurisdiction and without considering these aspects, the Court below erred in dismissing the Application.
8. According to me, the contention of the learned Counsel for the Revision Petitioner cannot be considered. As far as the Court-fee is concerned, market value has got a separate computation and as per Section 7 (2), the market value of the land in Suit falling under Section 25(a)(b), 27(a), 29, 30, 37(1), 37(3), 38, 45 or 48 shall be deemed to be —
(a) Where the land is Ryotwari land - 30 times the survey assessment on the land:
Provided that, where the land forms part of a survey field and is not separately assessed to revenue. The value of the such part shall be deemed to be 30 times such proportion of survey assessment as the part bears to the entire the survey field.
Section 7(2)(g) says that where the land is a house-site whether assessed to full or not, poromboke land, or is land not falling within the forgoing description-its market value has to be considered. Therefore, if the land is a Ryotwari land, the market value shall be deemed to be 30 times on the survey assessment land and if it is house site or poromboke land or land not falling within other description in Section 7, the market value, namely, the prices which the properties would get in open market has to be taken into consideration. Therefore, we would have to see whether the Court-fee paid by the Plaintiff is proper or not.
9. According to me, that question can be decided by the Court below by permitting the party to lead the evidence. The reason is that the Court fee is a mixed question of fact and law and it cannot be decided as a preliminary issue. Nevertheless, under Section 12(2) of the Tamil Nadu Court Fees and Suits valuation Act, 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. When such questions are raised, the same shall be decided before the evidence is recorded. In this case, it is admitted that the Revision Petitioner has not raised this issue in the Written Statement nor filed Application before recording the evidence. Admittedly, PW1 has filed proof and when the case was posted for cross-examination, this Application was filed by the Revision Petitioner. Therefore, the Petition filed by the Revision Petitioner cannot be brought under the scope of Section 12(2) of the Tamil Nadu Court Fees and Suits valuation Act. In my judgment rendered in Regila Prem v. Chellappan, 2010 (3) MWN (Civil) 722 : 2010 (5) LW 344, I relied upon the Division Bench of this Honourable Court reported in V.R Gopala Krishnan v. Andiammal, 2002 (2) CTC 513, wherein the difference between Order 14, Rule 2, and Section 12(2) of the Tamil Nadu Court Fees and Suits valuation Act was discussed and it was summarized as follows:
18. The learned Judge also summarised the legal position in para 19 of the following Judgment:
“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, C.P.C 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 case, 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 Nadu 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 Act, 1955, which is a substantial law shall prevail over Order 14, Rule 2, C.P.C which is a procedural law.
h. In the course of considering a preliminary issue, the Court is empowered to record such evidence as parties desired 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 prayed on the executor, then Court-Fee need not be paid for setting aside the same.”
Further in the judgment rendered in V.S Jagadeesan v. Madar Saheb, 2005 (2) MLJ 467; Suhrid Singh @ Sardool Singh v. Randhir Singhs, 2010 (2) MWN (Civil) 221 (SC) : AIR 2010 SC 2807, this Court has held that the issue of valuation and jurisdiction cannot be decided as a preliminary issue as they are mixed question of fact and law. Therefore, when the Application is filed after evidence was recorded, it can be construed only as an Application under Order 14, Rule 2, and this Court has taken a consistent view that when Application is filed under Order 14, Rule 2, the question of trying jurisdiction and Court-fee as a preliminary issue should not be resorted to and the issue of Court-fee and jurisdiction must be tried along with other issues. Hence, the Court below has rightly held that the issue of jurisdiction and Court-fee cannot be tried as a preliminary issue and it could be tried along with the other issue. Hence, I do not find any infirmity in the order of the Court below, the Revision is dismissed. However, it is open to the Revision Petitioner to lead the evidence regarding the valuation of the property and jurisdiction of the Suit before the Trial Court and the Trial Court is directed to consider the same, while deciding the same on merits. No costs. Consequently, connected Miscellaneous Petition is closed.