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Manicklal Verma And Another v. Smt. Jamunadevi And Others

Karnataka High Court

Feb 8, 2002

Judgment

Subsequent
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Structured Summary of the Opinion (Bharuka, J.)

Factual and Procedural Background

This matter is a defendants' revision petition filed under Section 115 of the Code of Civil Procedure (CPC). The underlying suit is for possession of a suit property which was valued at Rs. 14,00,000/- under Section 29 of the Karnataka Court Fees and Suits Valuation Act, 1958 (the "Act"), and an ad valorem court fee of Rs. 26,875/- had been paid on the plaint. The trial Court (the Court below) held that the court fee paid on the plaint was sufficient. The defendants disputed the valuation of the suit property and challenged the trial Court's determination of market value and sufficiency of court fee. The trial Court examined a Registered Valuer's valuation and considered the age of the building (about 60 years) before concluding that the court fee paid was sufficient. The defendants brought the present revision under Section 115 CPC, contending that the trial Court erred by not taking into account relevant factors and by not holding the enquiry required under Section 11(2) of the Act. The respondent challenged the maintainability of this revision petition and relied upon the Supreme Court decision in Sri Rathnavarmaraja v. Smt. Vimala, AIR 1961 SC 1299.

Legal Issues Presented

Whether a defendant can maintain a revision under Section 115 CPC against a trial Court's adjudication on the valuation of the subject-matter of the suit and the sufficiency of court fee where the trial Court has in fact adjudicated that issue under the procedure prescribed by Section 11(2) of the Act.
Whether the trial Court erred in its method of determining market value and the sufficiency of court fee payable by the plaintiff, including whether the enquiry mandated by Section 11(2) of the Act was properly conducted.
Whether the special procedure in the State Act for deciding valuation and court-fee issues has overriding effect over corresponding provisions or discretions in the Code of Civil Procedure (notably Order XIV Rule 2(2) of the CPC), and the consequences of Article 254(2) of the Constitution in that context.

Arguments of the Parties

Petitioners / Defendants' Arguments

The Trial Court erred in determining the market value of the subject-matter of the suit because it failed to take into consideration relevant factors.
The Trial Court did not hold a proper enquiry as mandated by Section 11(2) of the Karnataka Court Fees and Suits Valuation Act, 1958.

Respondent's Arguments

The respondent objected to the maintainability of the revision petition filed under Section 115 CPC.
The respondent relied on the Supreme Court judgment in Sri Rathnavarmaraja v. Smt. Vimala, AIR 1961 SC 1299, to support the contention that the defendant has no right to seek revision under Section 115 against an order adjudicating the adequacy of court fee paid on the plaint.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sri Rathnavarmaraja v. Smt. Vimala, AIR 1961 SC 1299	Held that the question whether proper court fee is paid on a plaint is primarily a question between the plaintiff and the State; a defendant has no right to move superior Courts by appeal or revision under Section 115 CPC against an order adjudging payment of court fee payable on the plaint. Also explained the limited scope of revision under Section 115 CPC.	The Court relied on this authority to conclude that where the trial Court has adjudicated valuation and court-fee sufficiency under the Special Act, the defendant cannot maintain revision under Section 115 CPC and the revision is not maintainable.
Umarabba v. Pathunni & Ors., 1984 2 Kar. L.J 97	Supports the principle that if a defendant pleads in the written statement that the subject matter has not been properly valued or the court fee is insufficient, the trial Court must decide such pleas before recording evidence.	The Court cited this case to reinforce that Section 11(2) of the Act mandates the trial Court to hear and decide valuation/court-fee pleas before evidence is recorded.
Thimmaiah v. Sreenivasa, ILR 1999 KAR 3660	Same principle as above: defendant's plea on valuation/court fee must be decided before evidence is recorded.	Cited to support the mandatory nature of the enquiry required by Section 11(2) of the Act.
Umakantha v. M. Malathi, 1998 2 Kar. L.J 220	Same principle as above concerning mandatory decision on valuation/court fee pleas before evidence.	Cited to show the consistent approach of the Court that Section 11(2) requires adjudication before evidence affects the objecting defendant.

Court's Reasoning and Analysis

The Court proceeded through a series of analytical steps, applying statutory provisions, precedent and constitutional principle set out in the opinion:

The Court first noted the factual position: the trial Court had in fact adjudicated the issue of valuation and quantum of court fee by examining the Registered Valuer's valuation and taking into account the age of the building (about 60 years). On that basis, the trial Court held the court fee paid on the plaint to be sufficient.
The defendants' complaint before this Court was limited to alleging that the valuation was not done in a proper manner and that the trial Court did not conduct the enquiry required under Section 11(2) of the Act.
The Court identified the central legal question: whether the defendants' grievance about valuation and adequacy of court fee (when the trial Court has adjudicated that issue under Section 11(2)) can be entertained in the revision jurisdiction under Section 115 CPC.
The Court relied on the Supreme Court's decision in Sri Rathnavarmaraja v. Smt. Vimala, which held that: (a) the question of proper court fee is primarily between the plaintiff and the State; (b) revision under Section 115 CPC is strictly conditioned by its clauses and is available only where there is refusal/assumption of jurisdiction or illegality/material irregularity in exercise of jurisdiction; and (c) a defendant cannot seek revision or appeal against an order adjudging payment of court fee payable on the plaint.
Applying Rathnavarmaraja, the Court concluded that where the trial Court has adjudicated valuation and sufficiency of court fee in the manner provided by the Act, the trial Court acted within jurisdiction even if its decision may be erroneous on merits. Such an error does not convert into a ground for revision under Section 115 CPC.
The Court observed that the proper remedy for an aggrieved party against such an order is to raise the issue before the Court of appeal under Section 11(4)(a) of the Act, which expressly permits the appellate Court to consider correctness of orders passed by the lower Court affecting the fee payable on the plaint and to determine the proper fee payable.
The Court analysed the nature of valuation questions and concluded they constitute a mixed question of fact and law and therefore require the enquiry contemplated under Section 11(2) of the Act; such issues are not appropriately determined as preliminary issues under Order XIV Rule 2(2) CPC (which permits the Court to decide questions of law as preliminary issues in its discretion). By contrast, Section 11(2) is mandatory and requires decision before evidence affecting the objecting defendant is recorded.
The Court further held that the special procedure provided in the State Act for determining valuation and court-fee issues has an overriding effect over the procedure contained in the CPC for this specific aspect. The opinion notes that the Act was brought into force after receiving the President's assent (the opinion references the date 23.5.1998 in one paragraph and 23.5.1988 in another paragraph) and therefore invoked Article 254(2) of the Constitution, which provides that a State law in the Concurrent List that is reserved for the President's consideration and has received his assent shall prevail over an earlier law on the same matter.
Summarising these points, the Court held that Section 11(2) (and Section 11(4)(a) for appellate remedy) creates a special, mandatory procedure: once the trial Court has decided the valuation/court-fee issue in the manner prescribed, the remedy available is to the appellate Court and not by way of revision under Section 115 CPC.

Holding and Implications

Holding: The revision petition is dismissed as not maintainable.

Implications and consequences:

Direct effect on the parties: the defendants' revision under Section 115 CPC is dismissed and they cannot seek relief in revision against the trial Court's adjudication on valuation and sufficiency of court fee where the trial Court has decided that issue under Section 11(2) of the Act.
Available remedy: an aggrieved party has the remedy to raise the issue before the Court of appeal under Section 11(4)(a) of the Act for adjudication on the correctness of the lower Court's order affecting the fee payable on the plaint (including recovery of deficit fee or refund of excess fee) — that is the specific statutory route contemplated by the Act.
Precedence on procedure: the opinion confirms that the special statutory procedure in the State Act for valuation and court-fee determination is mandatory and, insofar as it conflicts with the CPC procedure on this specific aspect, the State Act (having received the President's assent) prevails by reason of Article 254(2) of the Constitution, as explained in the judgment.
No new precedent created: the Court's conclusion is grounded on existing precedent (notably the Supreme Court's Rathnavarmaraja decision) and statutory interpretation; the decision applies those principles to dismiss the present revision petition rather than announcing a novel legal principle.

End of summary (based exclusively on the provided opinion).

Show all summary ...

Bharuka, J.:—

Heard the learned Counsel for the petitioners and the respondents.

2. This is defendants' revision under Section 115 CPC. The suit is for possession of the suit property which has been valued at Rs. 14,00,000/- under Section 29 of the Karnataka Court Fees and Suits Valuation Act, 1958 (in short the ‘Act’) and ad voleram Court fee of Rs. 26,875/- has been paid. By the impugned order, the Court below has held that the Court fee paid on the plaint was sufficient.

3. The defendants disputed the valuation of the said suit property. The Court below, after examining the valuation given by the Registered Valuer and taking into account the age of the building, which is about 60 years old, found that the Court fee paid on the plaint was sufficient.

4. According to the learned Counsel appearing for the petitioner/defendant, the Trial Court has miserably erred in determining the market value of the subject matter of the suit by not taking into consideration the relevant factors and further by not holding proper enquiry in this regard as required under Section 11(2) of the Act. On the other hand, the learned Counsel appearing for the respondent has taken an objection to the very maintainability of the revision petition filed under Section 115 CPC and to substantiate his stand, he has relied on the judgment of the Supreme Court in the case of Sri Rathnavarmaraja v. Smt. Vimala . AIR 1961 SC 1299..

5. Section 11(2) of the Act reads as under:—

11. Decision as to proper fee in Courts.—

(1) xxxxxxxxx

(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 property 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.

6. With reference to the above provision contained in sub section (2) of Section 11 of the Act this Court has consistently held that if any defendant pleads in his written statement that the subject matter has not been properly valued or the Court fee paid is not sufficient, then it is mandatory on the part of the Trial Court to decide the issue so raised before recording of the evidence. (See. Umarabba v. Pathunni & Ors. . 1984 2 Kar. L.J 97., Thimmaiah v. Sreenivasa* . ILR 1999 KAR 3660. Umakantha v. M. Malathi . 1998 2 Kar. L.J 220..

7. In the present case, as already noticed, the Trial Court in fact has decided the issue on valuation and quantum of Court fee payable by holding an enquiry as it thought fit. Therefore, the Court cannot be said to have committed any error of jurisdiction in not considering the question of valuation and sufficiency of Court fee paid as mandates under Section 11(2) of the Act. The grievance of the defendant before this Court is that the valuation has not been done in proper manner. The question now is whether such a plea can be permitted to be raised in the revisionai jurisdiction under Section 115 of CPC or not.

8. The above question has been squarely answered by the Supreme Court in Rathnavarmaraja's case (supra). In the case before the Supreme Court, the facts were almost the same as in the case at hand and the relevant provisions being Section 12(2) of the Madras Court Fees and Suits Valuation Act, 1955 is pari materia to Section 11(2) of the Act. The Supreme Court has held that.

“Whether proper Court fee is paid on a plaint is primarily a question between the plaintiff and the State. How by an order relating to the adequacy of the Court fee paid by the plaintiff, the defendant many feel aggrieved, it is difficult to appreciate. Again, the jurisdiction in revision exercised by the High Court under Section 115 of the Code of Civil Procedure is strictly conditioned by Clauses (a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the Subordinate Court or assumption of jurisdiction which the Court does not, possess or on the ground that the Court acted illegally or with material irregularity in the exercise of its jurisdiction. The defendant who may believe and even honestly that proper Court fee has not been paid by the plaintiff has still no right to move the superior Courts by appeal or in revision against the order adjudging payment of Court fee payable on the plaint.”

9. For the aforesaid reasons, it has to be held that in a case where the Trial Court has adjudicated upon the issue relating to valuation of the subject matter of the suit and sufficiency of Court fee paid or payable, then he will be deemed to have acted within the jurisdiction to do so even if the decision is found to be erroneous or wrong on merits. That by itself cannot clothe defendant with the right of maintaining a revision before this Court under Section 115 CPC. No doubt, as provided under sub-section (4)(a) of Section 11 of the Act, he will have a right to rise such an issue before the Court of appeal if the occasion arises, and in such a situation the procedure laid down under the said sub-section will have to be followed for adjudicating and for recovery of the deficit Court fee and refund of the excess Court fee. For quick reference, Section 11(4)(a) of the Act is being reproduced hereunder.—

Section 11. Decision as to proper fee in Courts.

(1) xxxxxxxxxxxx

(4)(a) Whenever a case comes up before a Court of appeal, it shall be lawful for the Court, either on 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.

10. Another aspect of law which is of fundamental importance in a case like the present one is that the issue pertaining to valuation of the subject matter of the suit, which in turn has direct relevance to the amount of the Court fee payable and the pecuniary jurisdiction of the Court, always gives rise to a mixed question of fact and law and therefore necessitates an enquiry as contemplated under Section 11(2) of the Act. Therefore, such an issue cannot by its very nature be decided as a preliminary issue within the meaning of Order XIV Rule 2(2) of the CPC which confers discretion in the Court to decide the issue of law only as a preliminary issue and that too, if it touches upon the jurisdiction of the Court or institution of such a suit is barred by any law.

11. On the other hand, Section 11(2) of the Act, like Order XIV Rule 12(2) of the CPC, does not confer mere discretion on the Court but it mandates that the issue of valuation of the subject matter of the suit both for the purposes of Court fee and jurisdiction has to be decided before evidence is recorded. It is also to be borne in mind that once the issue of valuation is decided by the Trial Court in the manner provided under the Act, the remedy available to any aggrieved party against such an order will be only to rise grievance on this score is a Court of appeal as provided under Section 11(4)(a) of the Act. As a necessary consequence any remedy by way of preferring revision under Section 115 CPC cannot be said to be maintainable.

12. Before parting it is appropriate to notice that the procedure provided under the Act is a special procedure for determining the issue relating to valuation of the subject matter having bearing on Court fee payable and jurisdiction of the Court and it has an overriding effect over the procedure contained in the CPC on this specific aspect. It is so because, admittedly, the subject of civil procedure (Entry 13) is contained in the concurrent list of the Seventh Schedule of the Constitution of India and present Act has been brought into force after obtaining assent of the President of India on 23.5.1998 Therefore, Article 254(2) of the Constitution of India comes into play which declares that.—

Article 254. Inconsistency between laws made by Parliament and laws made by the Legislature of States.—

(1). xxxxxxxxxxxx

(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to the matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the president and has received his assent, prevail in that State:

Provided…………..

13. Sub-sections (2) and (5) Section 11 of the Act, like Order XIV Rule 2(2) of CPC, does not confer mere discretion rather it mandates that the issue like that of valuation of the subject matter of the suit, the Court fee payable and pecuniary jurisdiction of the Court has to be mandatorily decided before evidence is recorded affecting the objecting defendant on the merits of the claim. Admittedly, assent of the President to the said Act was obtained on 23.5.1988 Therefore, in view of Article 254(2) of the Constitution, the procedure prescribed for determination of valuation of the subject matter of the suit, determination of Court fee payable and the pecuniary jurisdiction has to prevail over the provisions contained in Order XIV Rule 2(2) of the CPC.

14. Subject to the observations made above, the present revision petition is dismissed as not maintainable.