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SHADIRAM & SONS versus NAGAMMAL

High Court of Madras

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Shadiram & Sons v. Nagammal - C.R.P.(MD).No.151 of 2007 [2007] RD-TN 482 (5 February 2007)

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 05/02/2007

CORAM:

THE HONOURABLE MR.JUSTICE S. RAJESWARAN

C.R.P.(MD).No.151 of 2007

C.R.P.(MD).No.152 of 2007

and

M.P.(MD).No.1 of 2007

1. Shadiram & Sons

rep. by its Managing Partner

Shadiram.

2. S.R.S.Export Pvt.,

rep. by its Managing Director,

Shadiram Mohan.

3. S.R.S.Import & Export

rep. by its Manager,

Desh Raj Sharma. ... Petitioners in both CRPs. Vs

1. Nagammal

2. Shanmuga Raj

3. Rajendran

4. Kamatchiammal

5. Shanmuga Lakshmi

6. Kasiammal ... Respondents in both CRPs. Prayer

Revision Petition filed under Article 227 of the Constitution of India, against the Fair and Decretal Orders made in I.A.Nos.116 & 117 of 2006 in O.S.No.120 of 2005 dated 13.9.2006 on the file of the Additional District Munsif Court, Thoothukudi.

For Petitioners ... Mr.R.S.Ramanathan

For Respondents ... Mr.D.Sadiq Raja

For G.R.Swaminathan

:COMMON ORDER



These Civil Revision Petitions have been filed against the Fair and Decretal Orders made in I.A.Nos.116 & 117 of 2006 in O.S.No.120 of 2005 dated 13.9.2006 on the file of the Additional District Munsif Court, Thoothukudi.

2. The defendants in O.S.No.120 of 2005 on the file of the Additional District Munsif Court, Thoothukudi are the revision petitioners.

3. The plaintiffs filed a suit in O.S.No.120 of 2005, praying for a declaration that the suit schedule property belonging to them and also for recovery of possession. The suit was valued at Rs.25,000/- and a court fee of Rs.1875/- was paid by the plaintiffs. The defendants filed a written statement wherein, they have specifically stated that the suit property is worth more than a crore and therefore, the Additional District Munsif Court does not have the pecuniary jurisdiction to try the suit. Thereafter, the defendants filed I.A.No.116 of 2006 under Section 12(2) of the Tamil Nadu Court Fees Act to order valuation of the plaint schedule property along with the buildings and the benefits thereon. Through an Amin test to be carried out. The defendants have also filed I.A.No.117 of 2006 under Order 14 Rule 2 of C.P.C., to try the question of pecuniary jurisdiction as a preliminary issue.

4. The Trial Court by order dated 13.9.2006 held that the market value fixed by the Court is correct and it is not necessary for Amins test and the suit is correctly valued and falls within the jurisdiction of the Court. Hence, the Trial Court dismissed the I.A.No.116 and 117 of 2006. Aggrieved against the orders dated 13.9.2006, the above Civil Revision Petitions have been filed by the defendants.

5. Heard the learned counsel for the petitioners and the learned counsel for the respondents. I have also gone through the documents filed and the judgments referred to by them in support of their submissions.

6. The learned counsel for the revision petitioners submitted that the Trial Court ought to have appointed an Advocate Commissioner to assess the values of the suit property to arrive at a proper valuation for the payment of court fee and the provisions of Order 14 Rule 2 C.P.C. are not properly considered by the Trial Court. In support of his contentions, the learned counsel for the revision petitioners has relied on the following decisions:

1. (1987) 4 SCC 69 (Tara Devi Vs. Thakur Radha Krishna Maharaj)

2. 2002 (2) CTC 513 (V.R.Gopalakrishnan Vs. Andiammal)

7. Per contra, the learned counsel for the respondents supported the order of the Trial Court and he in turn relied on the following decisions:

1. AIR 1991 Jammu and Kashmir 1 (Smt.Aruna Kumari Vs. Ajay Kumar)

2. (2000) 3 M.L.J. 342 (M.Thandavaraya Poosali Vs. M.periyasamy Asari)

3. (2001) 3 M.L.J. 403 ( A.Manivannan Vs. Sivaraj)

4. 2005 (2) CTC 211 (Industrial Relations Manager, Madurai Coats Limited Vs. Jayaraman)

5. (2005) 2 M.L.J. 467 (V.S.Jagadeesan Vs. Madar Saheb).

8. I have considered the rival submissions with regard to facts and citations.

9. It is a case of the revision petitioners that they purchased the property along with two huge godowns and they have also put up additional constructions even before the suit was laid. This property was sought to be recovered as if it was the properties of the plaintiffs. The properties are worth crores and the suit was filed as if the property was a cattle grazing land. The learned counsel for the revision petitioners specifically pointed out that the plaint averments wherein the plaintiffs admitted that the building was put up by the defendants on 1.11.2004 itself. Therefore, the alleged that the suit was under valued and wanted an order from the Court to value the plaint schedule property by a Court Amin and if valued properly, the Trial Court would lose its pecuniary jurisdiction over the suit. The revision petitioners herein as plaintiffs opposed this application by contending that the suit land was a cattle grazing land and the constructions were put up by the defendants by taking law into their own hands and the Court fee paid by them is for their suit schedule land and in the event of a decree being passed in their favour, the plaintiffs have every right to recover the possession after removing the godowns.

10. Now let me consider the decisions relied on by both the parties to cull out the legal principles touching upon the issue in hand.

11. In (1987) 4 SCC 69 (sited supra), wherein the Hon'ble Supreme Court held that the plaintiff is free to make his own estimation of the reliefs for declaration and such valuation for the purpose of court fee and jurisdiction has to be ordinarily accepted and it is only in cases where it appears to the Court on a consideration of facts and circumstances of the case that the valuation is arbitrary, unreasonable and the plaint has been demonstratively under valued, the Court can examine the valuation and can revise the same.

12. In 2002 (2) CTC 513 (sited supra), this Court held that the Court has to hear the issue regarding valuation of suit property or the payment of court fee as preliminary issue, if defendants filed an application to that effect.

13. In A.I.R. 1991 J & K 1 (sited supra), the Jammu and Kashmir High Court held that when issue of jurisdiction is a mixed question of fact and law requiring evidence to be recorded by both sides, the same cannot be treated as a preliminary issue.

14. In 2000 (3) M.L.J. 342 (sited supra), this Court held that issue relating to valuation of court fee which has been decided as a preliminary issue in that case does not fall in the category of preliminary issues, which are permissible to be tried under Order 14 Rule 2.

15. In 2001 (3) M.L.J. 403 (sited supra), this Court held that Order 14 Rule 2 C.P.C. gives the Court the power to deal with only two kinds of issues as preliminary issues and that too only if they are issues of law.

16. In 2005 (2) CTC 211 (cited supra), this Court held that Order 14 Rule 2 gives the Court a discretion to dispose of the suit on a preliminary issue only if the issue relates to jurisdiction of the Court or a bar of suit and it is further necessary that the suit may be disposed of on an issue of law only. Otherwise the Court shall pronounce the judgment on all issues.

17. In (2005) 2 M.L.J. 467 (cited supra), this Court held that issue relating to valuation of the Court fees does not fall under Order 14 Rule 2 C.P.C.

18. In the case in hand, the defendants filed two applications in I.A.Nos.116 of 2006 filed under Section 12(2) of Tamil Nadu Court Fees Act and I.A.No.117 of 2006 filed under Order 14 Rule 2 C.P.C. As held by this Court, in 2002 (2) CTC 513 (cited supra), Court has no discretion to hear the issues regarding the valuation of the suit property, if an independent application has been filed under Section 12(2) of Tamil Nadu Court Fees and Suits valuation Act 1955.

19. The Trial Court in I.A.No.116 of 2006 did go into the question of valuation of the suit and the court fee paid by the plaintiffs. According to the plaintiffs, they wanted recovery of possession of their lands only which is a grazing land and therefore, they have correctly valued the suit and there is no need for Amin test. According to the defendants, the suit schedule property is a valuable property situated very near to harbour with very huge godowns constructed on it and therefore, the valuation is more than a crore. The Trial Court has rightly relied on the avermments made in the plaint alone without reference to the averments contained in the written statement and held that the market value fixed by the plaintiffs is correct and the suit is within the jurisdiction of this Court.

20. I do not find any infirmity in the order of the Trial Court, as the plaintiff is always free to make his own estimation of the relief sought for, in the plaint and such valuation both for the purpose of jurisdiction and court fee has to be ordinarily accepted. But the learned counsel for the revision petitioners submitted that it is a case of plaint being demonstratively under valued and therefore, this Court can revise the same.

21. I am unable to accept this contention of the learned counsel for the petitioners.

22. Only the plaint averments and the suit schedule property alone are to be considered for the purpose of valuing the suit and arriving at the court fees. In the plaint, it was stated that the suit schedule property is only a grazing lands which was not used for anything else except sending cattles for grazing. They have also stated that a patta has been issued in patta No.2962 and the plaintiffs have been paying the Kist for that patta land. They wanted recovery of possession as the defendants unauthorisedly entered their land and put up construction which are to be removed at the time of taking possession, if the suit is decreed in their favour.

23. Considering the plaint averments and the totality of facts and circumstances, the Trial Court has correctly decided the issue by holding that the value fixed by the

plaintiffs is correct and there is no need for Amins test. Once it is held that the valuation of the suit is correct then, the Trial Court has got pecuniary jurisdiction to try the suit.

24. Therefore, I do not find any merits in the above Civil Revision Petitions and consequently, these Civil Revision Petitions are dismissed. No costs. Connected M.P. is also dismissed.




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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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