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V.R.GOPALAKRISHNAN versus ANDIAMMAL

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V.R.GOPALAKRISHNAN v. ANDIAMMAL - CIVIL REVISION PETITION No.6922 of 2001 & C.M.P. No.3727 of 2001 [2002] RD-TN 15 (25 January 2002)



IN THE HIGH COURT OF JUDICATURE AT MADRAS

( Civil Appellate Jurisdiction ) DATED : 25-01-2002

Friday, the Twenty Fifth day of January Two Thousand Two PRESENT

THE HON'BLE MR JUSTICE A.S.VENKATACHALAMOORTHY CIVIL REVISION PETITION No.6922 of 2001 & C.M.P. No.3727 of 2001 V.R.GOPALAKRISHNAN [ PETITIONER/S ] Vs.

ANDIAMMAL [ RESPONDENT/S ] CHINNA PERUMAL

Petition under section 115 of Act V of 1908 praying the High Court to revise the Order of the Court of 1st Additional District Munsif, Salem, and made in I.A. No.709 of 2000 in O.S. No.820 of 1995. : ORDER



This petition coming on for orders as to hearing on this day, upon perusing the petition, and upon hearing the arguments of Miss.Lathamaheshwari, counsel for the Petitioner, and of Mr.N. Thiagarajan, counsel for the Respondents, the Court made the following Order:- The 2nd defendant in O.S. No.820 of 1995 on the file of the I Additional District Munsif, Salem is the petitioner herein. The above Revision has been filed against the Order dismissing I.A. No.709 of 2000 filed under Section 151 C.P.C to try issue No.4 ie., " Whether the plaintiff has valued suit properly and paid correct court fees as a preliminary issue ".

2.The first respondent/plaintiff filed O.S. No.828 of 1995 against the 2nd respondent/first defendant and the petitioner herein, praying the court to grant a decree setting aside the sale deed dated 18.3.1993 executed by the plaintiff to the 1st defendant as vitiated by fraud, cheating and fraudulent misrepresentation and not valid in law and to declare the plaintiff's title to the suit property. The plaintiff also sought for a decree for consequential permanent injunction restraining the defendants interfering with the plaintiff's possession and enjoyment of the suit property.

3. Briefly, it is the case of the plaintiff that the suit property is the ancestral property and that she has been in possession and enjoyment of the same in her own right and that the first defendant, a neighbour, took advantage of the plaintiff's old age and illiteracy, when the plaintiff conveyed her desire to put up a construction and for which she required some funds. According to the plaintiff, the first defendant assured her that he would arrange for some loan from the Government. Representing that the presence of the plaintiff is necessary, the first defendant took her to some office and asked her to put the left hand thumb impression in a number of papers. Believing the representation that she will be paid Rs.20,000/- by way of loan, she affixed her thumb impression in the papers as required by the 1st defendant. The version of the plaintiff is that she did not receive any amount by way of loan as promised by the first defendant. But on the other hand, the first defendant came out saying that he purchased the property from her. The plaintiff when verified with the office of the Sub Registrar, came to understand that the first defendant had obtained sale deed from her in respect of the suit property for a consideration of Rs.11,000/- and subsequently, he sold the property to the 2nd defendant on 30.8.1993 for a consideration of Rs.13,750/-. The sum and substance of the plaintiff's cla im is that she had been cheated and that the first defendant had played fraud on her, and in fact, the suit property was worth Rs.1,00,000/- on the date of the alleged sale.

4.The first defendant would deny the various averments made by the plaintiff. According to the first defendant, the plaintiff wanted to sell the suit property to convert her thatched house into a tiled house and offered him to sell the property and hence he purchased the same under a registered sale deed for a proper and valuable consideration and the same was known to her three daughters and son-in-laws and in fact with their consent.

5.The 2nd defendant viz., the petitioner herein also denied the various allegations made by the plaintiff. In para No.9 of the written statement, the 2nd defendant has stated that the property was not worth Rs.1,00,000/- on the date of sale, but on the other hand, the suit property was worth only Rs.10,000/-, which was sold by the plaintiff to the first defendant. The 2nd defendant has further raised a plea that the plaintiff has to pay the court fee on the market value of the suit property as on the date of the suit as stated by the plaintiff, under Section 40 of the Court fees Act and even according to the plaintiff, the suit property was worth Rs.1,00,000/- in 1993. Hence, the valuation of the suit for the purpose of court fee and jurisdiction is to be made on the basis of the allegations made in the plaint only. 6.Pending suit, the 2nd defendant filed an application in I.A. No.7 09 of 2000 under Section 151 CPC, praying the court to try issue No.4 viz., " Whether the plaintiff has valued the suit properly and paid correct court fees." as a preliminary issue. In the affidavit filed in support of the said application, the 2nd defendant has contended that the suit has not been properly valued for the purpose of court fee and jurisdiction and it will exceed the pecuniary jurisdiction of the Munsif Court and that even according to the plaintiff, the suit property was worth Rs.1,00,000/- even in the year 1993.

7.The first respondent/plaintiff resisted the said application contending that as per the Court Fees Act the value for setting aside a document is the value of the property for which the sale deed or other document was executed and so it is valued at the price mentioned in the document and that further it is not the case of the 2nd defendant that the property was worth Rs.1,00,000/-.

8.Learned III Additional District Munsif, Salem,dismissed the application, holding that when the 2nd defendant himself purchased the disputed property for Rs.11,300/-, he cannot expect the plaintiff to value and pay the court fee for Rs.1,00,000/- and that since the contention raised by the 2nd defendant seems to be a mixed question of law and fact which requires the evidence on merits, issue No.4 can be considered at the time of trial along with other issues.

9.It is necessary to advert to the legal position before this Court takes up for consideration, the point at issue in this Civil Revision Petition.

10.Order-14 of the Civil Procedure Code deals with Settlement of Issues and Determination of Suit on Issues of Law or on Issues Agreed Upon. Prior to 1976, Order-14 Rule-2 about which now the court is concerned, was to the following effect:" Issues of Law and Fact:Where issues both of law and fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined.This Rule came to be amended by Amendment Act 104 of 1976 and the Rule as it stands today reads thus:" Where issues both of law and fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issues relates to-

a) the jurisdiction of the Court, or

b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined and may deal with the suit in accordance with the decision on that issue.

11.If the above provisions are carefully examined, it can be seen that earlier, the Law Makers employed the word "shall" and now in the amendment, the word "shall" has been replaced by the word "may". In view of the conscious replacement by the Legislators, it cannot be urged that the word "may" should be understood as "shall". Thus, now it is discretionary for the Court to decide the issue of law as a preliminary issue or to decide it along with the other issues. There can be no doubt that the discretion vested with the Court can be used only judiciously. Ordinarily once an order is passed by the Court, the same will not be interfered with in Revision by the High Court (AIR 1991 All. 89 F.B SUNNI CENTRAL WAQF BOARD vs. GOPAL SINGH VISHRAD). But in appropriate cases, the High Court has to set right the error in revision. Suppose there are two suits wherein the contentions raised by the rival parties are exactly similar, the Court cannot in one suit, while upholding the claim of the defendant that a particular issue should be tried as a preliminary issue, reject the plea made by the defendant in the other suit. It could be seen that the amended Rule makes a departure from the rule as it stood before the amendment in three respects viz., {i} that 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.

{ii} that 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 and for that purpose postpone the settlement of the rest of the issues and

{iii} that 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. The object of amending the rule is to avoid trial of suits piecemeal, repeated appeal and remand of the suit to the trial Court where the appellate Court disagree with the verdict of the trial Court on a preliminary issue.

12.According to Order-14 Rule-2, the defendant can raise an objection with regard to the jurisdiction of the court. The jurisdiction has to be understood both territorial and pecuniary jurisdiction. If the schedule mentioned property is situated outside the jurisdiction of the court then certainly that court will have no jurisdiction to hear the matter. Similarly, if the value of the suit exceeds the pecuniary jurisdiction of the court in which the suit is instituted, then again that court will have no jurisdiction. In the course of considering a preliminary issue as to whether there is a statutory bar to the suit, Court can record such evidence as parties desire to let in only in relation to that issue/aspect (1985 Mad. 300 D.B. MITSUBISHI FRANCE vs. NEYVELI LIGNITE CORPORATION LIMITED.)

13. There is also a provision in the Tamil Nadu Court Fees and Suits Valuation Act, 1955 viz., Section-12 which lays down that the Court shall decide on the materials and allegations available in the plaint, the proper court fee payable thereon. Section 12(2) of the Act reads thus: " 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. "

According to the above provision, all questions arising as such pleas shall be heard and hence no discretion is vested with the Court. If on the basis of the materials and allegations contained in the plaint, the Court comes to the conclusion that the suit has not been properly valued or that the fee paid is not sufficient, the Court can call upon the plaintiff to amend the plaint and also pay the deficit court fee. If the plaintiff fails to do that, the Court shall reject the plaint and pass appropriate orders. Once the Court decides that the subject matter of the suit has not been properly valued or that the court fee paid is not sufficient, the Court has no option except to fix a date and call upon the plaintiff to comply the defect viz., by amending the plaint and also by paying necessary court fee. It has to be noticed that in this Section, the word "shall" has been employed as against the word "may" that occurs in Order-14 Rule-2 CPC. Of course, it is the settled legal position that the question of valuation must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits and further all the material allegations contained in the plaint should be construed and taken as a whole. It is the substance and not the form matters (vide 1980 SC 691 {Neelavathi v. N.Natarajan}& AIR 1987 SC 2 085 {Tara Devi vs. Thakur Radha Krishna Maharaj}

14. There appears to be some conflict between the provisions in C.P.C. (ie) Order 14 Rule 2 when read with Section 12 (2) of the Tamil Nadu Court Fees and Suits Valuation Act with reference to deciding the pecuniary jurisdiction of the Court. Suppose in a given case, the defendant comes forward with an application requesting the court to decide an issue relating to valuation of the suit property or the payment of court fee as a preliminary issue, the Court may applying the provision Order 14 Rule 2, decide to consider along with other issues and not as a preliminary issue. Then the defendant may file an application to consider the issue as per the provisions of Section 12 (2) of the Tamil Nadu Court Fees and Suits Valuation Act, then the Court will have no discretion and it has to consider the same. The Tamil Nadu Court Fees and Suits Valuation Act is a substantial law while C.P.C is a procedural law. The substantial law will prevail over the procedural code and consequently, it follows whenever the defendant files an application, requesting the court to decide the issue of valuation of the suit property or the payment of court fee and all questions arising on such pleas as a preliminary issue, the Court has to necessarily consider as per the provisions of Section 12 (2) of the Tamil Nadu Court Fees and Suits Valuation Act. Not in all cases where the defendant has disputed in the written statement, the valuation of the suit property or contended that the suit has not been properly valued, the court has to consider it as a preliminary issue. Only where the defendant makes an application, the Court is bound to consider under Section 12 (2) of the Tamil Nadu Court Fees and Suits Valuation Act.

15. The next question that arises for consideration is that when a decree is sought for, setting aside the sale, how the property has to be valued?; Is it the alleged sale consideration as could be found in the document relevant or the market value of the property on the date of the filing of the suit? It is settled law that when a suit is filed under Section 40 of the Court Fees Act with a prayer to set aside the conveyance viz., in this case-sale, the value of the property on the date of filing of the suit alone is relevant (vide AIR 1971 Madras 380; AIR 1939 Madras 462 {KUTUMBA SASTRI vs. SUNDARAMMA} and AIR 1974 Madras 152 {T.S.R.AMMAL vs.V.N.SWAMINATHAN})

16. Coming to the present case, while it is the case of the petitioner/2nd defendant that the plaintiff should have paid the court fee on the basis of the market value on the date of filing of the plaint, since he has only taken into consideration the alleged sale consideration, if the market value on the date of filing of the suit is taken into consideration, the Munsif Court will not have pecuniary jurisdiction to hear the suit. The contention of the plaintiff is that she can proceed on the basis taking the alleged consideration under the sale deed as a basis for filing the suit.

17. It can be noticed that in this case, the plaintiff is not disputing the thumb impression. Her case is that when she expressed her need to get some loan, the first defendant under the guise of getting the loan, took her to some office and got her thumb impressions affixed in some papers. Or in other words, her case is that the first defendant misrepresented and played a fraud on her. She did not sign the document knowing it to be a sale deed. Courts have held that before a document can be said to have been executed it is not sufficient to show that a particular person affixed his signature, but it must be further shown that he signed it knowing that he was signing that particular document and intending to do so, vide (1950 (2) MLJ 268 { PADMA BIVI AMMAL vs. MOHAMMAD MOHIDEEN ROWTHER). So, in that view, the plaintiff cannot be asked to pay the Court Fee for its cancellation on the basis of the market value of the property on the date of filing of the plaint.

18. Yet another aspect this court is inclined to take note of. The alleged sale was in the year 1993. The suit was filed in the year 19 95. According to the 2nd defendant, the first defendant purchased the property for Rs.11,000/- from whom he purchased after six months for Rs.13,750/- and for any other price. The pecuniary jurisdiction of the Munsif Court is upto Rs.30,000/-. Of course, the plaintiff has stated that even in 1993, the suit property was worth Rs.1,00,000/-. The defendant has nowhere stated as to what according to him the valuation of the property, on the date of filing of the suit. In the above circumstances, it is not necessary to try the issue in question as a preliminary issue. Though the learned District Munsif has not pointed out the above reasons, the final conclusion by the lower court is correct and need not be interfered with.

19. To sum up, the legal position is : {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 CPC 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 cases, 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 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 A ct 1955, which is a substantial law shall prevail over Order 14 Rule 2 CPC which is a procedural law.

{h} In the course of considering a preliminary issue, the Court is empowered to record such evidence as parties desire 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 played on the executor, then Court fee need not be paid for setting aside the same. 20. In the result, the C.R.P is dismissed. The connected C.M.P. Will stand closed. Sd/ JI. 25/01/2002. Sd/ Asst. Registrar. /True copy/

Sub Assistant Registrar. To


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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