IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE : 19.06.2013 CORAM THE HONOURABLE Mr.JUSTICE M.
VENUGOPAL C.R.P.(PD)No.1261 of 2011 and M.P.No.1 of 2011 1.L.P.Alaghappa Chettiar 2.Indira Alaghappan ..Petitioners Vs 1.V.Janardhanan 2.V.Santhana Krishnan ..Respondents Prayer: This Civil Revision Petition is filed under Article 227 of Constitution of India as against the order passed by the Learned I Additional District Munsif, Coimbatore in I.A.No.3158 of 2009 in O.S.No.1724 of 2009, dated 07.09.2010.
For Petitioners : Mr.S.Ramesh For Respondents : Mr.N.C.Siddharth for Mr.T.R.Rajaraman
ORDERThe Petitioners/Defendants have preferred the instant Civil Revision Petition as against the Order dated 07.09.2010 in I.A.No.3158 of 2009 in O.S.No.1724 of 2009 passed by the Learned I Additional District Munsif, Coimbatore.
2.The Learned I Additional District Munsif, Coimbatore, while passing the Order dated 07.09.2010 in I.A.No.3158 of 2009 in O.S.No.1724 of 2009, has categorically inter alia observed that ..this Court is of the considered view that this Court can infer or decide the question whether the sale consideration is genuine or fraudulent only at the time of trial and it must be proved or disproved only by the evidence.
This disputed fact is unable to be decided in a premature stage, etc., and further, opined that all the averments made by the Petitioners can be a defence for contesting the case of the Respondents at the time of trial and resultantly, dismissed the petition without costs.
3.Challenging the Order of dismissal dated 07.09.2010 in I.A.No.3158 of 2009 in O.S.No.1724 of 2009 passed by the Learned I Additional District Munsif, Coimbatore, the Learned Counsel for the Petitioners/Defendants submits that the trial Court has dismissed the Application for rejection of plaint, based on valuation of the suit without dealing with the ingredients of Section 40 and Section 25(d) of Tamil Nadu Court-Fees and Suits Valuation Act, 1955.
Further, the trial Court has relegated that aspect of the matter to be examined at the time of trial of the main case with procedure, is not correct in law.
4.The Learned Counsel for the Petitioners/Defendants urges before this Court that the averment made in the suit is that the Respondents/Plaintiffs together with their father Veerasamy and one Suresh appointed the 1st Petitioner/1st Defendant as Power Agent and the said Power of Attorney was duly registered on 04.07.2006 (vide Doc.No.409 of 2006).Also, the further averment is that the 1st Petitioner/1st Defendant utilising the Power of Attorney executed a Sale Deed in favour of his wife viz., the 2nd Petitioner/2nd Defendant on 15.07.2008.
5.That part, it is the stand of the Respondents/Plaintiff in the suit that one of the Principals mentioned in the Power of Attorney viz., Veerasamy died on 21.09.2007, leaving behind the Respondents/ Plaintiffs to succeed to his estate.
The plea taken in the Plaint is that consequent to the death of one of the Principals, the entire Power of Attorney lapses and as such, the execution of Sale Deed on 15.07.2008 is a fraudulent and not binding on them.
6.Resting on the aforesaid allegations, the Respondents/Plaintiffs have sought the relief of declaration for the purpose of Court Fee and Jurisdiction and valued the same under Section 25(d) of Tamil Nadu Court-Fees and Suits Valuation Act, 1955.
7.The Learned Counsel for the Petitioners/Defendants submits that the Petitioners/Defendants filed I.A.No.3158 of 2009 in O.S.No.1724 of 2009 on the file of the trial Court under Order 7 Rules 10 and 11 of the Code of Civil Procedure, praying for passing of an order by the Court in directing the Respondents/Plaintiffs to pay necessary Court Fee under Section 40 of Tamil Nadu Court-Fees and Suits Valuation Act, 1955, in respect of sale value and upon payment of the fee to return the plaint, with a direction to present the case before the Competent Court possessing pecuniary jurisdiction or otherwise to reject the plaint.
8.Advancing his arguments, the Learned Counsel for the Petitioners/Defendants contends that the Respondents/Plaintiffs are nevertheless parties to the Sale Deed, dated 15.07.2008, since on that day, when the Sale Deed was executed, the Deed of Power of Attorney, dated 04.07.2006, was not cancelled.
9.Yet another plea of the Petitioners/Defendants is that the Power of Attorney executed by the Respondents/Plaintiffs would become inoperative insofar as the deceased Principal is concerned and in respect of Principals, who are very much alive, the same continues in Law.
As such, the act of the 1st Defendant/1st Petitioner in executing a Sale Deed, when the contract of agency survives, is a valid and binding one.
10.The Learned Counsel for the Petitioners/Defendants projects a legal argument that the Respondents/Plaintiffs are parties to the Sale Deed, dated 15.07.2008 and they seek relief to set aside the same, their prayer in this regard would fall under Section 40 of Tamil Nadu Court-Fees and Suits Valuation Act, 1955.
In short, the submission of the Learned Counsel for the Petitioners/Defendants is that the valuing the suit for the purpose of suit value jurisdiction at Rs.2,000/- and payment of Court Fee at Rs.151/- under Sections 25(d) and 29(c) of Tamil Nadu Court-Fees and Suits Valuation Act, 1955, by the Respondents/Plaintiffs, is an erroneous one.
11.The last leg of the argument of the Learned Counsel for the Petitioners/Defendants is that the real remedy prayed for in the Plaint by the Respondents/Plaintiffs is one for cancellation of Sale Deed, dated 15.07.2008 and as such, the Respondents/Plaintiffs have to value the Plaint under Section 40 of Tamil Nadu Court-Fees and Suits Valuation Act, 1955.
12.Conversely, it is the submission of the Learned Counsel for the Respondents/Plaintiffs that their father Veerasamy got the property by way of Partition Suit in O.S.No.463 of 1982 and subsequently, he sold the property, measuring an extent of 5 = cents to one Suresh by virtue of Sale Deed, dated 11.07.1991.
13.Continuing further, the Respondents and their father have appointed the 1st Petitioner as Power Agent by means of Deed of Power of Attorney, dated 04.07.2006, in and by which the 1st Petitioner was appointed only as a Power Agent to maintain the property.
14.Added further, the Learned Counsel for the Respondents/Plaintiffs submits that their father Veerasamy expired on 21.09.2007, leaving behind them and her mother to succeed his estate and that the Respondents applied for Encumbrance Certificate on 15.07.2009 through which it came to light that the 1st Petitioner created a Sale Deed in favour of the 2nd Petitioner on 15.07.2008.
15.The Learned Counsel for the Respondents/Plaintiffs strenuously contends that the Respondents/Plaintiffs are not the parties to the Sale Deed dated 15.07.2008, then, there is no need or any necessity on their part to pay the Additional Court Fee under Section 40 of Tamil Nadu Court-Fees and Suits Valuation Act, 1955.
Also that, when the suit has been filed by the Respondents/Plaintiffs, praying for declaration that the Sale Deed, dated 15.07.2008, is null and void and the payment of Court Fee under Section 25(d) of Tamil Nadu Court-Fees and Suits Valuation Act, 1955, is correct and proper one.
Therefore, there is no necessity to return the plaint and present the same before the Competent Court.
16.The Learned Counsel for the Petitioners/Defendants relies on the decision of this Court S.N.S.Sukumaran v.
C.Thangamuthu and Others (Batch of CRPs) reported in 2012 (5) CTC705 at Special Page Nos.706 and 707, wherein it is laid down 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 and 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 14, 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 fiRs.before deciding the suit on merits, then a duty is cast upon the Court under Section 12(2) of the State Act to fiRs.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 12(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 merits 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.
In the light of the law discussed hereinabove, we are answering the reference as above.
Consequently, the contrary view taken by the learned single Judges cannot stand as good law.
Hence, the decisions rendered in E.Pushpalatha v.
C.Shanmughasundaram, 2003 (1) C.T.C.87; and A.
Chinnaraj v.
Saroja Ammal, 2007 (5)CTC432: 2008 (1) M.L.J.75 stand overruled.
Further, the decision rendered in Solaiammal versus Rajarathinam, 2003 (4) C.T.C.268, stands partly overruled.
The decisions rendered in Laljivora versus Srividya, 2001 (2) C.T.C.411 and V.R.Gopalakrishnan versus Andiammal, 2002 (2) C.T.C.513 are affirmed. 17.Per contra, the Learned Counsel for the Respondents/Plaintiffs cites the decision of this Court Siddha Construction (P) Ltd., rep.
by its Power Agent, Anjay Sharma, No.32, Guruswamy Road, Chetpet, Chennai-600 031 v.
M.Shanmugham and OtheRs.2006 (5) CTC255 at Special Page 257, wherein in Paragraphs 11 and 12, it is observed as under: 11.
For deciding the value of the Court Fee payable by the plaintiff the averments in the plaint alone are to be considered.
In O.S.No.13/2002, the prayer sought for is to declare the sale deed executed by the 1st defendant (the 5th respondent herein) in favour of the 3rd defendant (Revision Petitioner) as null and void and not binding on them.
It is averred at para 10 of the plaint that since they are not party to the sale deed dated 31.10.2001, which is to be declared as null and void, the plaintiff valued the suit for the purpose of the Court Fee under Sec.25(d) of the Tamil Nadu Court Fees Act.
It is also further averred in para 7 of the plaint that the plaintiffs did not execute the sale deed and they did not receive any sale consideration.
It is the further case of the revision petitioner that they did not make any alienation to and in favour of any one till today in respect of the suit schedule property.
12.In the light of the averments made in the plaint, the trial court is right in coming to the conclusion that the suit has been rightly valued and the trial court has pecuniary jurisdiction to try the suit. 18.He also seeks in aid of the decision of this Court M.Nelson Babu v.
K.Kamalesh Babu and another, 2009 (5) CTC814 at Special Page 817, wherein in Paragraph 11, it is held thus: 11.Order 7 Rule 11(d) has limited application.
For its applicability, it must be shown that the present suit is barred under law.
Such a conclusion must be drawn from the averments made in the plaint.
What would be the relevant for invoking Order 7-N Rule 11(d) of CPC.
are the averments made in the plaint and for that purpose, there cannot be any addition or subtraction.
For the purpose of invoking the said provision, no amount of evidence can be looked into. 19.Furthermore, he brings it to the notice of this Court to the order dated 12.06.2007 passed by this Court in CRP (PD) Nos.1660 to 1663 and 1188 to 1195 of 2005 between Parvathavarthini @ Kuppammal @ Raji and another v.
Heerachand Surana rep.
by Power of attorney S.Sivakumar, wherein in Paragraphs 21 to 23, it is observed and held as follows: 21.In a recent judgement in Siddha Construction (P) Ltd., versus M.Shanmugham (2006 (5) CTC255 this court again reiterated that a suit for declaration that particular sale deed is null and void could be valued under Section 25(d) of Tamil Nadu Court Fees and Suit Valuation Act if on plaint averments it is found that plaintiff was not party to such sale deed i.e., neither he executed the sale deed, nor he received any consideration.
22.In 2001 (4) CTC764(Kamaleshwar Kishore Singh versus Paras Nath Singh & otheRs.the Hon'ble Supreme Court held that court fee has to be paid based on the plaint as framed and not as it ought to have been framed, unless while drafting plaint plaintiff had attempted at evading payment of court fee by his astuteness in drafting.
If there is provision of law requiring the plaintiff to value the suit in a manner other than the one plaintiff had adopted then the court fee has to be paid as required by law.
For the purpose of determination of court fee payable on plaint, the court should begin with presumption that averments in the plaint are correct and arbitrary valuation of the suit property to evade payment of court fee or for conferring jurisdiction on court which it does not have or for depriving jurisdiction of court which it would otherwise have, can also be interfered with by the court.
The Supreme Court also held that it is the substance of relief and not the form which will be determinative of valuation and for payment of court the defence taken in written statement may not be relevant.
23.From the above decisions it is clear that if the plaintiffs are not parties to the sale deed which is being attacked as sham and nominal or on any other ground, then a suit for declaration without asking for the relief of cancellation of the said deed is maintainable and the suit property can be valued under Section 25(d) of the Act and it is not necessary to value the suit property under Section 40(1) of the Act.
Admittedly, in the present case the plaintiff has sought for the relief of declaration and there is no prayer for cancellation of the sale deed.
Further, the plaintiff is not parties to the said sale deed.
As per the ratio laid down in the abovesaid decisions, only a party to the document or decree which is challenged alone need to pay the court fee as under Section 40(1) of the Act and a third party to the document is not entitled to value the suit property under Section 40(1) of the Act.
If a third party to the document is required to pay the court fees as per Section 40(1) i.e., as per the market value of the suit property, then it will result in disastrous consequences.
Section 25 (a) or (b) or (c) also would not attract to the present case since the plaintiff did not ask for the relief of possession or consequential injunction or any exclusive right of use.
Further a reading of the the averments in the plaint, would show that no astuteness in drafting the plaint can be attributed to the plaintiff so as to evade proper court fee.
Therefore, in the present case the plaintiff is required to pay the court fee only under Section 25(d)of the Pondicherry Court Fees and Suit Valuation Act. 20.In fact, an issue of Court Fee is a matter which is between the Revenue/Government and a litigant, who is supposed to pay the correct Court Fee.
As a matter of fact, the Defendants are entitled to raise objections in regard to the payment of Court Fee by the Plaintiffs either through their Written Statement or by way of filing of application before evidence is taken in the main suit.
Sections 12(2) and (3) of Tamil Nadu Court-Fees and Suits Valuation Act, 1955, confer a right to the defendants to pinpoint their objections in regard to the adequacy of the Court Fee paid by the Plaintiffs in a given case.
21.It is to be pointed out that a plaint can be returned to the Plaintiff under Order 7 Rule 10 of the Code of Civil Procedure only if the Court in which the plaint is filed and prosecuted, suffers from lack of territorial or pecuniary jurisdiction.
If a Court of Law has no jurisdiction, it must return the plaint although the claim is not properly valued or undervalued, as the case may be.
A Court of Law returning the plaint has no jurisdiction on correcting the valuation in regard to the demand of Additional Court Fee or has to dismiss the suit for default under Order 7 Rule 11 of the Code of Civil Procedure.
22.If a suit is not properly or correctly valued, an appropriate order to be passed by a Court of Law, is to call upon the Plaintiff to furnish the correct valuation.
If a Court of Law holds that the relief prayed for by the Plaintiff has been undervalued and orders a party to correct the same, then, it is open to the Plaintiff to amend the valuation at any time before an order rejecting the plaint is made so as to limit the claim to the Court Fee paid, as per decision Ramakrishna Reddi v.
Veera Reddi, AIR1946Mad 126.
23.Further, in the decision of the Honourable Supreme Court Meenakashi Sundaram Chettiar v.
Venkarachalam Chettiar, (1980) 1 SCC616 it is held that there must be a genuine effort on the part of the Plaintiff to estimate his relief and not a deliberate under estimation. 24.At this stage, this Court aptly points out that a cursory reading of the ingredients of Order 7 Rule 11(b) of the Code of Civil Procedure clearly point out that a Court of Law has to come to a conclusion that a relief claimed has been undervalued, which necessarily means that it is able to decide and specify proper and correct valuation of the relief and after determination of the correct value of the relief requires the Plaintiff to correct his valuation within a time to be determined by the Court.
Inasmuch as undervaluation of a suit goes to the crux of maintainability of the suit, a Defendant is entitled to raise objections irrespective of the nature of the suit.
If a Plaintiff has valued a suit property, based on the value mentioned in the Sale Deed, the Plaint cannot be rejected on the ground that the property was not correctly valued on the basis of the fact that while furnishing description of the property in the Sale Deed, the Market Value of the property was given much higher almost double the price, as per decision G.Loganathan v.
S.Chenniya Chettair, AIR1996Mad 224.
25.If the valuation of the property by the Plaintiff is arbitrary and unreasonable, the Court can interfere with the same as per Order 7 Rule 11 of the Code of Civil Procedure, in lieu of the decision Rupia v.
Bhattu Mahton, AIR1944Pat 17 (FB).26.It is true that a Court of Law, at any stage of the proceedings, has power to direct the Plaintiff to pay proper Court Fee in a case of undervaluation or improper fraction of the Court Fee.
In considering the issue of correct valuation, a Court of Law is not confined to what appears on the plaint.
It can, rely on admissions made in interlocutory proceedings as per decision Kashinath v.
Tukaram, AIR1956Nag 195.
27.A Plaintiff may overvalue or undervalue the suit for the purposes of avoiding Court of a certain grade.
28.A rejection of plaint at the initial stage may lead to hardship and inconvenience and may also result in miscarriage of Justice, in the considered opinion of this Court.
29.Apart from the above, it is to be borne in mind that as per Order 14 Rule (4) of the Code of Civil Procedure, issues are of two kinds.
(a) Issues of fact (b) Issues of law.
In Civil Procedure Code, there are adequate provisions viz., Order 7 Rule 11 and Order 14 Rule 2 of the Code of Civil Procedure which confer powers to Civil Court to decide its own jurisdiction and questions as regards the maintainability of the suit as per decision of the Honourable Supreme Court Thirumala Tirupati Devasthanams and another v.
Thallappaka Ananthacharyulu and otheRs.(2003) 8 Supreme Court Cases 134 at Special Page 143.
30.Issue of valuation of the suit and Court Fee has to be decided as a preliminary issue as per decision M/s.Laxmi Cotton Co.and another v.
Sr.Mahant Cotton Co.and otheRs.2003 AIHC157(Karnataka).31.If a party desires to let in evidence on a issue, then, the said issue ceases to be an issue of Law, as opined by this Court.
32.Also, it is not incumbent upon a Court of Law to frame a preliminary issue on jurisdiction and decide it fiRs.in all events and circumstances as per decision Desh Bandhu v.
Harish Bindal, 2001 AIHC712and 713 (Delhi).33.An issue regarding adequacy of Court Fees is not a mere issue of law.
It is well settled principle in law that in appealable cases, all issues arising in the suit, ought to be ordinarily tried together and decided.
The object is to avoid protracted litigation and to avoid piecemeal trial etc., Indeed, Order 14 Rule 2 of the Code of Civil Procedure visualises that all issues will have to be framed firstly and later, out of issues so framed a Court of Law may take up one or more issues and try/hear them as preliminary issue and postpone the settlement of other issues.
The ingredients of Order 14 Rule 2 are discretionary in nature and a Court of Law is not bound to try an issue as preliminary issue.
If numerous factual questions based on evidence are to be looked into by a Court of Law for deciding an issue relating to limitation, it was not pure issue of Law.
Per contra, it is a mixed question of Law and fact.
In case of refusal to try it as preliminary issue, one cannot find fault with the trial Court in this regard.
34.Suffice it for this Court to point out that it is open to a Court of law to frame preliminary issue as to (a)Jurisdiction or (2)Bar of suit as per decision S.v.Bandalam, AIR1982AP291 35.In the decision of this Court T.Ganapathia Pillai v.
Somasundaram Pillai and otheRs.A.I.R.(37) 1950 Madras 213, it is held as follows: Under O.14, R.2, a Court has ample discretion to try an issue of law if it is of opinion that the case or any part thereof may be disposed of on issues of law only and for that purpose may postpone the settlement of issues of fact till after the issues of law have been determined.
But, the discretion that a trial Court is called upon to exercise under this rule is a nice one to be determined by the facts of each case, in other words, whether the preliminary issue of law raised would be sufficient and is so clear-cut that it will decide the suit finally once and for all.
A Judge properly exercises his discretion under O.14, R.2, in dealing to decide as a preliminary issue a question of jurisdiction which appears to be a mixed issue of law and fact and directing the disposal of the case once and for all on all the issues, when the case is one which is to be decided mainly on the documents before the Court with very little oral evidence to abe taken: A.aI.R.(23) 1936 Pat.
250, Ref. 36.At this juncture, this Court makes an useful reference to Section 25 of Tamil Nadu Court-Fees and Suits Valuation Act, 1955, reads as under.
25.Suits for declaration.-In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under section 26 -- (a)where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the property or on rupees three hundred, whichever is higher; (b)where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property or on rupees three hundred, whichever is higher; (c)where the prayer relates to the plaintiff's exclusive right to use, shall, print or exhibit any mark, name, book, picture, design or other thing and is based on infringement of such exclusive right, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees five hundred, whichever is higher; (d)in other cases, whether the subject-matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees four hundred, whichever is higher. 37.Really speaking, Section 25(d) of Tamil Nadu Court-Fees and Suits Valuation Act, 1955, provides for other suits for bare declaratory decrees or for declaratory decrees with consequential reliefs, not falling under any of the aforesaid three Clauses.
38.Section 40 of Tamil Nadu Court-Fees and Suits Valuation Act, 1955, refers to Suits for cancellation of decrees, etc. 39.The term Cancellation implies that a party suing must be a party to the document or decree.
At this stage, this Court cites the decision Alamelu alias Chinnakannammal and others v.
Manickkammal, (1979) 2 M.L.J.8, whereby and whereunder it is held as follows: Having regard to the way in which the suit had come to be filed in the present case, it was clear that the plaintiff did not admit at any time that the document was executed by her or that she was a party to the document.
Her case was that it was a forged one.
Forged documents would not confer title on any person and it would be unnecessary to get such a document set aside in order to succeed in the prayer for declaration.
The payment of court-fee is to be adjudged on the plaint allegations.
Whether the allegation of forgery is correct or not will have to be gone into in the suit.
The suit was properly valued. 40.Be that as it may, in view of the fact that the Written Statement has been filed as early as on 24.03.2011, it is open to the trial Court to frame necessary issues of fact and issues of law (if not framed already) (including the issue relating to the valuation of the suit for the purpose of Court Fee and jurisdiction) and also whether the payment of Court Fee of Rs.151/- in all paid by the Respondents/Plaintiffs under Section 25(d) and 27(c) of Tamil Nadu Court-Fees and Suits Valuation Act, 1955, is correct and proper.
If need be an issue can also be framed (if not framed already) as to whether the Respondents/Plaintiffs are required to pay necessary Court Fee under Section 40 of Tamil Nadu Court-Fees and Suits Valuation Act, 1955, in respect of Sale Deed dated 15.07.2008, executed by the 1st Petitioner/1st Defendant in favour of the 2nd Petitioner/2nd Defendant about which a declaratory relief has been sought for.
The respective parties are given liberty to raise all factual and legal pleas before the trial Court even in regard to the issue relating to sufficiency or adequacy of Court Fee to be paid or otherwise by the Respondents/Plaintiffs for the relief sought for by them either under Section 25(d) of Tamil Nadu Court-Fees and Suits Valuation Act, 1955, or under Section 40 of the Act.
Indeed, this Court is also alive to the fact that the issue regarding Court Fee is not to be tried as preliminary issue as per decision R.C.Sundravalli v.
T.D.Shakila, AIR2002Madras 82 at Special Page 84 and 95.
Also, it cannot be brushed aside that Order 14 Rule 2 of the Code of Civil Procedure per se is not mandatory.
However, it is within the discretion of the trial Court to take up the point of jurisdiction or payment of Court Fee as a preliminary issue.
It cannot be gainsaid that an issue dependant on fact cannot be tried as preliminary issue, in the considered opinion of this Court.
41.In the upshot of foregoing qualitative and quantitative discussions mentioned aforesaid and on a careful consideration of respective contentions, this Court comes to an irresistible conclusion that the Order passed by the trial Court dated 07.09.2010 in I.A.No.3158 of 2009 in O.S.No.1724 of 2009 does not suffer from any material irregularity or patent illegality in the eye of law.
Consequently, the Civil Revision Petition fails.
42.In the result, the Civil Revision Petition is dismissed, leaving the parties to bear their own costs.
Resultantly, the Order passed by the trial Court dated 07.09.2010 in I.A.No.3158 of 2009 in O.S.No.1724 of 2009 is confirmed by this Court for the reasons assigned in this Revision.
Consequently, connected M.P.1 of 2011 is closed.
Further, if for any reason, the main suit O.S.No.1724 of 2009 is pending on the file of the Learned I Additional District Munsif, Coimbatore, as on date, then, in the interest of Justice, the trial Court is directed to dispose of the said main suit, within a period of four months from the date of receipt of a copy of this order.
Also, the parties are required to render their utmost co-operation and assistance to the trial Court in disposing of the aforesaid main suit O.S.No.1724 of 2009 on its file, within the time fixed by this Court.
Index :- Yes / No Internet :- Yes / No 19.06.2013 mps M.
VENUGOPAL J mps To 1.The I Additional District Munsif, Coimbatore.
2.The Sub-Assistant Registrar (Judicial).High Court, Madras.
(To watch and report) Pre-Delivery Order in C.R.P.(PD)No.1261 of 2011 and M.P.No.1 of 2011 19.06.2013