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Madras High CourtCRP(MD)/49/2011disposed of

M.Alagesan v. J.Esakkimuthu

2018-08-11Honourable Mr Justice Krishnan Ramasamy4 pages

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Orders Reserved on : 09.08.2018 Orders Pronounced on : 11.08.2018

CORAM:

THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY C.R.P(MD)No.49 of 2011 (PD) M.Alagesan

...Petitioner/Petitioner/Defendant

Vs.

J.Esakkimuthu ... Respondent/Respondent/ Plaintiff PRAYER: Civil Revision Petition is filed, under Article 227 of the Constitution of India, to set aside the order dated 28.09.2010 passed in I.A.No.144 of 2009 in O.S.No.35 of 2009 on the file of the Additional District Munsif, Tuticorin.

For Petitioner : Mr.S.Subbiah Senior Counsel for Mr.G.Aravindhan For Respondent : Mr.G.Prabhu Rajadurai

ORDER

This Civil Revision Petition has been filed by the petitioner as against the order dated 28.09.2010, passed in I.A.No.144 of 2009 in O.S.No.35 of 2009 on the file of the Additional District Munsif, Tuticorin.

2.The respondent was the plaintiff and the Petitioner was the defendant in the suit. The respondent filed suit in O.S.No.35 of 2009 against the respondent before the Additional District Munsif, Tuticorin, for the relief of permanent injunction. During pendency of the said suit, the petitioner herein filed an interlocutory application in I.A.No.144 of 2009 in O.S.No.35 of 2009 before the Additional District Munsif, Tuticorin, to decide and adjudicate the issue with regard to the pecuniary jurisdiction of the Court, the valuation of the plaint and incidentally the Court fee payable by the plaintiff.

3.Per contra, the respondent in his counter specifically stated that the Court below has the jurisdiction to entertain the present suit, as the suit was valued properly and necessary court fee also paid accordingly.

4.After hearing both the parties and perused all the pleadings and other documents, the lower Court dismissed the application stating that proper stamp duty was paid the issue raised by the petitioner is not relevant for the present case. Aggrieved by the said order of the learned District Munsif, Tuticorin, the petitioner here preferred the present Civil Revision Petition. 5.I have heard the learned counsel appearing for the petitioner; the learned counsel appearing for the respondent and also perused the entire materials on record.

6.When the matter came up for hearing, the learned counsel appearing for the petitioner advanced his argument stating that since the value of the suit is much more than Rs.1,000/- and therefore, the Court below does not have any jurisdiction to entertain the suit. However, the learned counsel for the petitioner conceded that this issue of pecuniary jurisdiction also can be decided by the Court below, as a preliminary issue along with the payment of Court fee and therefore, the lower Court can frame the said issue as a preliminary issue.

7.In support of his contentions, the learned counsel for the petitioner relied on following Judgments:- (i) 2012-5-L.W. 197 (S.N.S.SUKUMARAN v. C.THANGAMUTHU) wherein at paragraph No.31, it has been held as follows: "After giving our anxious consideration to the matter and having regard to the law discussed hereinabove, the reference is answered as under:- (1)The Tamil Nadu Court Fees ad Suits Valuation Act, 1955 (Section 12) enacted by the State Legislature on a subject covered by the Concurrent List, albeit inconsistent with the provisions of the Code of Civil Procedure (Order XIV, Rule 2) and being in compliance with the requirement of Article 254 of the Constitution of India, having been given assent by the President of India, shall prevail over the provisions of the Code of Civil Procedure.

(2)When a defendant comes forward with a case pleaded in the written statement questioning the correctness of the valuation of the suit property and payment of court fee and asks the Court, by an application, to decide it first before deciding the suit on merits, then a duty is cast upon the Court under Section 12(2) of the State Act to first decide the objection before deciding the suit on merits.

(3)However, before proceeding to decide the objection with regard to valuation and court fee as provided under Section 1(2) of the State Act, the Court shall prima facie satisfy itself, on perusal of the pleadings of the parties

and the materials brought on record, that the objection raised by the defendant has substance.

(4)Such objection with regard to improper valuation of the suit and insufficiency of Court fee shall be entertained by the Court only before the hearing of the suit on merits commences and witnesses are examined. Section 12(2) of the State Act makes it clear that such objection shall be heard and decided before evidence is recorded on the merit of the case.

(5)Exercise of right by the defendant as contained in Section 12(2) of the Act must be bona fide and not with an ulterior motive of dragging the suit on this issue. Hence, the Court shall not grant unnecessary adjournments in hearing of such application, and in the event the Court finds that the defendant is not diligent or co-operating with the Court in the disposal of such objection expeditiously, then the Court shall proceed with the hearing of the suit on merits and decide all issues, including the one relating to the valuation of the suit and the adequacy or otherwise of court fee, together." (ii) (2012) 2 MLJ 73 (P.B.KASEE SAH v. P.T.HIRU SAH), wherein at paragraph Nos.15 to 17, it has been observed as under:- "15.Learned counsel appearing for respondent has submitted that under Order 14, Rule 2 C.P.C.

Discretion is always vested with the Court whether to take up the issue as preliminary issue or not and when the learned Judge has directed that the issue regarding valuation to be decided along with the suit, the same cannot be interfered with. 16.Order 14, Rule 2 C.P.C. Deals with settlement of issues and determination of suit on issues of law or on issues agreed upon. As per Order 14, Rule 2 C.P.C., Court may try any issue as preliminary issue when it relates to: (a) jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force. As per Order 14, Rule 2 C.P.C., a discretion is vested with the Court to try the issue as to jurisdiction or statutory bar to the suit as a preliminary issue.

In appropriate cases, Court may decline to try the issue as to jurisdiction or to statutory bar to the suit as preliminary issue if it considers expedient to do so. 17.Of course, as per Section 12(2) of Tamil Nadu Court Fees and Suits Valuation Act, when the defendant has disputed in the written statement the valuation of the suit property or contended that the suit has not been property valued, the Court has to consider it as a preliminary issue. But not in all cases where the defendant has disputed in the written statement, the valuation of the suit property, the Court need to consider the issue as a preliminary issue.

harmonious reading of Order 14, Rules 1 and 2 C.P.C. And Section 13(2) of Tamil Nadu Court fees and Suits Valuation Act. After all, the question resolving the dispute regarding valuation is for the purpose of seeing whether the suit has been properly valued and whether the suit within the pecuniary jurisdiction of the Court, Lest, if the suit property is under valued and in such cases if the property is correctly valued, the Court may not have pecuniary jurisdiction to try the suit."

8.The learned counsel appearing for the respondent also conceded and agreed that the said issue of with regard to the jurisdiction of the Court to file the suit by the respondent based on valuation can be considered as a preliminary issue. 9.Since both the counsel advanced their arguments conceding that the said issue of jurisdiction can be considered as a preliminary issue and to that extent, the lower Court can frame the said issue, as a preliminary issue, at the time of framing of other issues, this Court, without going into the merits of the case, recording the submissions made by both sides, directs the Court below to frame the issue with regard to the jurisdiction of the Court to file the suit by the respondent based on valuation, as a preliminary issue, at the time of framing other issues and accordingly, decide the same.

10.With the above direction, this Civil Revision Petition is disposed of. No costs.

Sd/- Assistant Registrar(CS-I) /True Copy/ Sub Assistant Registrar(CS-I) To The Additional District Munsif, Tuticorin.

+1CC to Mr.G.Prabhu Rajadurai, Advocate, SR.No.78362 C.R.P(MD)No.49 of 2011 (PD) 11.08.2018 RJ2 ES/SKN/RSK/SAR 1/14.09.2018/4P/3C