Judgment:
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:
30. .09.2013 CORAM THE HONOURABLE MR.JUSTICE R.SUBBIAH C.R.P (PD) No.1080 of 2010 and M.P.No.1 of 2010 1.Gandhimathi 2.S.Duraisamy 3.S.Suresh Kumar 4.S.Govindasamy 5.Latha ... Petitioners vs. 1.P.Baby 2.R.Chinnasamy 3.R.Ponnusamy 4.R.Krishnakumar ... Respondents Civil revision petition has been filed under Article 227 of the Constitution of India against the order dated 1.3.2010 in O.S.No.274 of 2007 on the file of the District Munsif's Court, Tiruppur. For petitioners : Mr.C.R.Prasanan For respondents : Mr.V.Nicholos ORDER
Aggrieved over the suo motu additional issue framed by the Court below on 1.3.2010, with regard to the pecuniary jurisdiction to try the suit in O.S.No.274 of 2007 on the file of the learned District Munsif, Tiruppur, the present civil revision petition has been filed by the plaintiffs.
2. The brief facts which are necessary to decide the issue involved in this civil revision petition, are as follows:- (i) The petitioners herein have filed a civil suit as against the respondents in O.S.No.274 of 2007 for declaration of their title over the suit property and also for permanent injunction restraining the respondents / defendants from disturbing their peaceful possession and enjoyment of the suit property. The suit property is an agricultural land measuring to an extent of 6.84 acres in Survey No.71/1 and 5.40 acres in Survey No.71/5 of Nallur Village, Tiruppur District. (ii) It is the case of the petitioners / plaintiffs that the suit property is a part of the joint family properties in the hands of one Chinna Palani Gounder and his father Kamachi Gounder. Out of the said properties, the properties in Survey No.71/1 and 71/5 were sold in a Court auction on 15.6.1937. One Valliappa Chettiar had purchased the said properties. Thereafter, the properties were partitioned in and by a registered partition deed between the family members on 28.5.1952. An extent of 5.94 acres of land out of 11.88 acres of land with a house in S.F.Nos.71/1 and 71/5 of Nallur Village was purchased by one Subbaraya Gounder and his three brothers viz., (1) Rangasamy Gounder, (2) Kamachi Gounder and (3) Murugasamy Gounder by virtue of a sale deed dated 2.9.1957. Even though the properties were sold in Court auction sale in the year 1937, the possession of the property was continued to be with Subbaraya Gounder and his three brothers. The said Subbaraya Gounder and his three brothers have partitioned the properties orally prior to 1960. On 9.7.1964, Subbaraya Gounder and his brother Kamachi Gounder exchanged their properties under registered deed of exchange. As per the deed of exchange, Subbaraya Gounder was allotted several properties inclusive of Survey Nos.71/1 and 71/5. Subsequently, the said Subbaraya Gounder executed a settlement deed in favour of the first petitioner herein, who in turn, executed two registered settlement deeds in favour of petitioners 2 and 5. Thus, these petitioners are in possession and enjoyment of the said property. While so, respondents 1 to 4 herein, who have no title over the said property, are trying to disturb the possession of the petitioners. Hence, they have filed the present suit. (iii) The said suit was resisted by the defendants / respondents herein stating that originally the suit property belonged to a temple. On 31.7.1972, the Settlement Tahsildar, issued patta to the ancestors of the respondents and from that date, they are in possession of the suit property. The petitioners on the basis of the forged documents, are trying to grab the said land. (iv) On the basis of the above pleadings, the Court below has framed six issues and the same are as follows:- (1) Whether the suit property belongs to the plaintiffs ?. (2) Whether the suit property is in possession of the plaintiffs ?. (3) Whether the suit is barred by non-joinder of necessary parties ?. (4) Whether the plaintiffs are entitled to mandatory injunction ?. (5) Whether the plaintiffs are entitled to permanent injunction ?. (6) To what relief the plaintiffs are entitled to ?. (v) On the side of the petitioners / plaintiffs, P.Ws.1 to 3 were examined and Exs.A.1 to A.25 were marked. On the side of the defendants / respondents, D.Ws.1 and 2 were examined and Exs.B.1 to B.3 were marked. (vi) On 18.2.2010, the petitioners / plaintiffs have filed written arguments and argument was heard on the side of he respondents / defendants. Thereafter, the matter was adjourned for clarification on 1.3.2010. On 1.3.2010, suo motu the Court below has framed an additional issue to the effect that ".whether this Court has pecuniary jurisdiction to try the suit ?.". (vii) Aggrieved over the framing of the said additional issue suo motu by the Court below after filing written arguments, the present civil revision petition has been filed by the petitioners / plaintiffs.
3. It is submitted by the learned counsel appearing for the petitioners that any objection with regard to insufficient Court fee paid on the plaint or with regard to pecuniary jurisdiction should be raised before the first hearing of the suit or before the evidence was recorded. Moreover, there is no need to try pecuniary jurisdictional issue either as a preliminary issue or as an independent issue, since the question with regard to the pecuniary jurisdiction was not raised as a defence by the respondents. Therefore, the act of the Court below in framing additional issue suo motu with regard to the pecuniary jurisdiction is not legally sustainable and as such, the additional issue framed by the Court below with regard to the pecuniary jurisdiction to try the suit is liable to be set aside. In this connection, he has relied on the decisions reported in 2002 (1) CTC33 R.C.Sundaravalli vs. T.D.Shakila and 2001 (2) CTC411 Laljivora vs. Srividya.
4. Per contra, learned counsel appearing for the respondents submitted that even if there is no pleading or evidence with regard to the pecuniary jurisdiction, the Court below has got power to frame an issue under Order 14 rule 3 C.P.C. Further, by inviting the attention of this Court to Order 14 Rule 5 C.P.C., learned counsel appearing for the respondents has also submitted that the Court has power to amend the issues or frame additional issues on such terms as it thinks fit. Therefore, it is incorrect to state that the Court below erred in framing additional issue suo motu with regard to the pecuniary jurisdiction of the Court to try the suit.
5. Heard the submissions made on either side and perused the materials available on record.
6. The petitioners herein have filed a suit for declaration of title over the suit property and for consequential injunction against the respondents herein. The said suit was resisted by the respondents herein by taking a defence that the suit property belongs to a temple and they got patta for the suit property, which was issued by the Settlement Tahsildar on 31.7.1972 and since then, they are in possession and enjoyment of the same. In the written statement, absolutely, no plea was taken by the respondents with regard to the pecuniary jurisdiction of the Court to try the said suit. Even in the evidence, no whisper was made by the respondents with regard to the pecuniary jurisdiction of the Court to try the suit. Now, on completion of evidence on both sides and after receiving the written arguments on the side of the petitioners and also after hearing the arguments on the side of the respondents, the Court below has suo motu framed an additional issue on 1.3.2010 to the effect that 'Whether this Court has the pecuniary jurisdiction to try the suit ?.". According to the learned counsel appearing for the respondents, under Order 14 Rule 3 C.P.C., the Court can suo motu frame an additional issue.
7. As per Order 14 rule 3 C.P.C., the Court may frame the issues from all or any of the following materials viz., (a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties: (b) allegations made in the pleadings or in answers to interrogatories delivered in the suit; (c) the contents of documents produced by either party.
8. A reading of Order 14 Rule 3 C.P.C. would show that the Court can suo motu frame an issue based on the materials available before it. Therefore, even if the issue with regard to the pecuniary jurisdiction was not raised in the pleadings, based on the contents of the documents produced by the parties, if the Court feels that the said issue with regard to the pecuniary jurisdiction of the Court to try the suit is necessary, to decide the said issue, the court can frame such issue suo motu, based on the allegations made in the pleadings or on oath by the parties or based on the contents of the documents produced before it. Therefore absolutely there cannot be any controversy, if the Court feels that the issue with regard to the pecuniary jurisdiction to try the suit is necessary, the Court can frame the issue based on the materials available before it.
9. Now, the question that has to be considered in this case is, whether the issue with regard to the pecuniary jurisdiction to try the suit can be framed at the fag end of the trial.
10. In this connection, learned counsel appearing for the petitioners relied on the decision reported in 2002 (1) CTC33 R.C.Sundaravalli vs. T.D.Shakial, which gives a fitting answer for this issue. Paras 7, 9 and 10 of the said order, are usefully extracted hereunder:- ".
7. That the defendant has the right to take an objection regarding the improper valuation of the suit or insufficiency of Court fees even by a petition supported by an affidavit and not necessarily by the written statement has been decided in the decision reported in Raju Gramani v. Srinivasa Gramni, 1958 (1) M.L.J.
308. Therefore, it was open to the petitioner to raise this question by his written statement or even by an affidavit supported by petition. But, the aforesaid Section clearly lays down that this objection should be raised before the first hearing of the suit or before evidence is recorded on the merits of the claim.
9. If the words 'First hearing of the suit' is so understood, then under Section 12(2) of the Tamil Nadu Court Fees Act, the defendant can plead either by written statement or otherwise the defence relating to improper valuation of suit or insufficiency of Court fees before the final hearing of the suit. In this case the issues have been settled, therefore, the first stage before which the defendant could have raised his objection has passed. The Section provides for another stage when a defendant could plead as above. This is before the evidence is recorded on the merits of the claim. Therefore, after evidence is commenced on the merits of the claim, a reading of the Section indicates that the defendant does not have any further opportunity to plead either that the suit has not been properly valued or that the fees paid is not sufficient. In this case, both the stages have passed. The issues have been settled and even as per the admission of the petitioner, the additional issues have also been framed and it is also seen from a perusal of the judgment that trial had already started.
10. Section 12(2) of the Act also requires the Court to hear and decide these questions before evidence is recorded affecting such defendant on the merits of the claim. In this case since evidence has also been recorded, the procedure set down in Section 12(2) of the Act cannot be adopted. The learned counsel for the petitioner submitted that the Court should not have postponed this question, but ought to have decided the same and if the Court had found that the valuation is not correct, then, the Court should have directed the respondent to amend the plaint in accordance with the Court's decision and for payment of deficit court fee and if the petitioner had committed default in either amending the plaint or in payment of deficit fee within the stipulated time the plaint should have been rejected. In this case, the Court below rejects the application on the ground that this question had been raised by the petitioner when the evidence was in progress and therefore, it was highly belated.".
11. From a reading of the above decision, it is clear that the issue with regard to the pecuniary jurisdiction to try the suit otherwise the defence relating to improper valuation of the suit or insufficiency of Court fee, has to be framed before the issues have been settled. After settling the issues and recording the evidence, at the fag end of the trial, the issue with regard to the pecuniary jurisdiction cannot be raised.
12. It is the submission of the learned counsel appearing for the respondents that under Order 14 Rule 5 C.P.C., the Court may at any time before passing an order to amend the issues or frame additional issues on such terms as it thinks fit and all such amendments or additional issues as may be necessary for determining the merits in controversy between the parties shall be so made or framed.
13. Order 14 Rule 5 C.P.C. is usefully extracted hereunder:- ".
5. Power to amend and strike out issues:- The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. (2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly framed or introduced.".
14. By a reading of Order 14 Rule 5 C.P.C., I am of the opinion that the amending of the issue or framing of the issue should be based on the materials in controversy between the parties. But, in the instant case, no controversy is raised by the respondents either in pleadings or during the course of recording of evidence with regard to the pecuniary jurisdiction of the Court. Therefore, the submission made by the learned counsel appearing for the respondents in justifying the action of the Court below in framing additional issue at the fag end of the trial with regard to the pecuniary jurisdiction cannot be appreciated.
15. For the foregoing reasons, I am of the opinion that the additional issue framed by the Court below suo motu with regard to the pecuniary jurisdiction of the Court to decide the suit is liable to be set aside and accordingly, set aside and the civil revision petition stands allowed. No costs. Consequently, connected miscellaneous petition is closed. 30 .09.2013 Index:Yes Internet: Yes sbi To The District Munsif, Tiruppur. R.SUBBIAH, J sbi Pre-delivery order in C.R.P (PD) No.1080 of 2010 DATED:
30. .09.2013