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High Court of Madras

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Gnanasekaran v. Mani - C.R.P.(NPD) No.1727 of 2005 [2005] RD-TN 667 (17 September 2005)



IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:17/09/2005

CORAM

THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM C.R.P.(NPD) No.1727 of 2005

and

CMP No.15321 of 2005

Gnanasekaran .. Petitioner -Vs-

Mani .. Respondent Civil revision petition preferred under Sec.115 of the Code of Civil Procedure against the fair and decretal order dated 8.2.2005 made in CMA No.12 of 2004 on the file of the Principal Sub Court, Nagapattinam, confirming the order returning the plaint dated 5.12.20 02 made in O.S.No.184 of 2000 on the file of the District Munsiff Court at Nagapattinam. For Petitioner : Mr.Srinath Sridevan

For Respondent : -

:ORDER



An order of the learned Principal Subordinate Judge, Nagapattinam, dismissing an appeal in CMA No.12 of 2004 filed by the revision petitioner/plaintiff wherein the order of the District Munsif, Nagapattinam, returning the plaint on the ground of valuation, was affirmed, is under challenge.

2. The revision petitioner as plaintiff, filed a suit for mandatory injunction directing the respondent/defendant to vacate the property and hand over possession, along with a permanent injunction. The written statement was filed, and issues were framed by the lower Court. At that juncture, the plaint was verified by the Court Fee Examiner from this Court, and it was found that the valuation of the property is Rs.1,83,125/-, and hence, the Court Fee should have been paid thereon. After hearing both sides, the District Munsif was of the opinion that it is a fit case where the Court Fee was to be paid for Rs.1,8 3,125/-, and apart from that, that Court lacks jurisdiction to entertain the suit and hence, returned the plaint for proper presentation before the appropriate Court. Aggrieved over the same, the plaintiff took it on appeal before the Sub Court, Nagapattinam, in CMA No.12 of 2004. Opportunity of being heard was given to both sides, and the learned Subordinate Judge was of the opinion that the order of the trial Court was to be affirmed, and hence, this revision at the instance of the plaintiff.

3. The learned Counsel appearing for the petitioner would submit that it was a suit for mandatory injunction; that both the lower Courts were not correct in holding that a suit for mandatory injunction cannot be filed in a case of permissive possession; that the lower appellate Court was under mistaken impression that the proceedings in question were proceedings on a check-slip, wherein the determination of Court Fee was very relevant; but, it was not so; that the proceeding before the Sub Court was an appeal against an order returning the plaint, and therefore, the only question to be decided in the appeal was whether the District Munsif was correct in returning the plaint or not; that whether the Court Fee is payable or whether there is a defrauding of the revenue is totally irrelevant, and thus, the learned Subordinate Judge has taken an erroneous view. Added further the learned Counsel that the learned District Munsif erred in returning the plaint on the basis of under-valuation ignoring the fact that in the plaint itself, there were certain cogent and valid reasons for filing the suit for mandatory injunction and in support of the valuation therein; that the learned District Munsif cannot go into the truth or otherwise of the averments in the plaint, and under the circumstances, the order of the learned Subordinate Judge has got to be set aside.

4. This Court is of the considered opinion that this revision itself does not require even an admission either, or a notice to be issued to the respondent/defendant for the simple reason that a reading of the plaint would clearly indicate that what was the relief sought for by the plaintiff was one for recovery of possession of an immovable property from the hands of the defendant. Under the circumstances, the framing of the suit as one for mandatory injunction directing the defendant to hand over possession of the property, if allowed, all suits for recovery of possession of an immovable property will be filed with a relief of mandatory injunction. Apart from that, it would be appropriate to reproduce the provisions of Sec.27 of Court Fees Act. Sec.27 reads thus:

"27. Suits for Injunction: In a suit for injunction - (a) Where the relief sought is with reference to any immovable property, and (i) Where the plaintiff alleges that his title to the property is denied, or (ii) Where an issue is framed regarding the plaintiff's title to the property, fee shall be computed on one-half of the market value of the property or on rupees seven hundred and fifty, whichever is higher. (b) .......

(c) In any other case, where the subject-matter of the suit has a market value or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees one thousand, whichever is higher."

5. A reading of the above provisions of Sec.27(c) would clearly reveal that otherwise cases are provided therefor. In the instant case, it can be stated that the Court Fee is expected to be paid under Sec.30 of the Act, as rightly found by the learned Subordinate Judge. Under the circumstances, it is a fit case where the Court Fee for Rs.1,83,125/- as found by the Court Fee Examiner of this Court, has got to be paid, and if to be so, the District Munsif cannot entertain the suit in view of the pecuniary jurisdiction, and thus, he has rightly returned the plaint on that ground. This Court is unable to notice any reason to entertain the revision petition.

6.Accordingly, this civil revision petition is dismissed. However, the petitioner is advised to re-present the case before the appropriate forum on payment of Court Fee as one expected in law, within a period of 30 days from today. No costs. Consequently, connected CMP is also dismissed. Index: yes

Internet: yes

To;

1)The Principal Subordinate Judge

Nagapattinam

2)The District Munsif

Nagapattinam

nsv/




Copyright

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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