Judgment:
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED :
16. 12.2014 CORAM THE HONOURABLE MR.JUSTICE M.DURAISWAMY C.R.P.(MD)(PD).No.2301 of 2014 and M.P.(MD)No.1 of 2014 Mayilathal ... Petitioner/Respondent/Plaintiff Vs.
1. Kaliappan 2. Senthilkumar 3. Kuppusamy(died) ... Respondents/Petitioners/Defendants Prayer Civil Revision Petition has been filed under Article 227 of the Constitution of India to call for the records and set aside the same fair and decreetal order dated 08.08.2014 in I.A.No.268 of 2011 in O.S.No.18 of 2011, on the file of the District Munsif Court, Ottanchatram. !For Petitioner : Mr.H.Lakshmi Shankar ^For Respondents : Mr.R.Vijayakumar * * * * :ORDER
Aggrieved over the fair and final order passed in I.A.No.268 of 2011 in O.S.No.18 of 2011, on the file of the District Munsif Court, Ottanchatram, the plaintiff has filed the above Civil Revision Petition.
2. Heard the learned Counsel for the petitioner and the learned Counsel for the respondents.
3. The plaintiff filed the suit in O.S.No.18 of 2011 to declare the sale deed dated 26.03.2010 as null and void and for permanent injunction. The defendants filed their written statement and are contesting the suit. Thereafter the trial Court framed the issues and posted the suit for trial. Subsequently the defendants filed an application in I.A.No.268 of 2011 under Order 14 Rule 2(2)(a) of the Code of Civil Procedure to try the issue with regard to the payment of Court fee and the jurisdiction of the District Munsif Court to try the suit as a preliminary issue. In the affidavit filed in support of the application, the defendants have stated that the Court fee paid by the plaintiff under Section 25(d) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 was not correct and that the plaintiff should have valued the suit on the market value of the property at Rs.2Lakhs and paid Court fee under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955.
4. The trial Court after taking into consideration the case of both parties allowed the application finding that the issue with regard to the payment of Court fee and the jurisdiction of the Court can be decided as a preliminary issue.
5. The learned Counsel appearing for the revision petitioner contended that the payment of Court fee under Section 25(d) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 is proper for the reason that the plaintiff was not a party to the sale deed dated 26.03.2010, which was executed by the first defendant in favour of the second defendant, therefore she has filed the suit to declare the sale deed as null and void and paid Court fee under Section 25(d) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955.
6. The learned Counsel for the petitioner in support of his contention relied upon the following judgments: (i) In Ramesh B. Desai and others Vs. Bipin Vadilal Mehta and Others reported in 2006-4 L.W.896, wherein the Honourable Apex Court held that under Order 14 Rule 2(2) of the Code of Civil Procedure where the issues involved is both of law and fact, the Code confers no jurisdiction upon Court to try the said issue as a preliminary issue. (ii) In Sahul Hameed Rowther Vs. K.P.C.Mohideen Pichai reported in Vol.61 L.W.270, wherein the Division Bench of this Court held that in view of the plaintiff's allegation that the sale was sham and nominal, it is not necessary for the plaintiff to pray for cancellation of the deed and to value his suit for the purpose of jurisdiction and Court fee under Section 7. (iii) In Satti Paradesi Samadhi and Pillar Temple represented by its Hereditary Managing Trustee B.S.Ramalingam Vs. M.Sakuntala (died) and Others reported in Manu/TN/5279/2011, wherein the Division Bench of this Court held that under Order 14 Rule 2 C.P.C. the Court must give judgment on all issues; but where any issue of law relates to the jurisdiction of Court or a bar of suit, the Court may postpone settlement of other issues until the aforesaid issue has been determined as a preliminary issue and the Court may deal with the suit in accordance with the decision of that preliminary issue.
7. Countering the submissions made by the learned Counsel for the petitioner, the learned Counsel for the respondents submitted that the Court fee paid under Section 25(d) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 is just and proper and that though the application was filed by the defendants under Order 14 Rule 2 of the Code of Civil Procedure, the ingredients of the application would show that it is an application filed under Section 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. Further he submitted that the Tamil Nadu Court Fees and Suits Valuation Act is a substantial law while the Code of Civil Procedure is procedural law and therefore, the provisions of Section 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 shall prevail over the procedural law.
8. In support of his contentions, the learned Counsel for the respondents relied upon the following judgments: (i) In V.R.Gopalakrishnan Vs. Andiammal reported in 2002(2) CTC513 wherein this Court held that the Code of Civil Procedure is procedural law and Tamil Nadu Court fees and Suits valuation Act is substantial law. The Substantial law will prevail over the procedural law, therefore this Court has to hear issue regarding the valuation of suit property or payment of court fee as preliminary issue if defendant filed independent application to that effect and not otherwise. (ii)In M.Abdul Muthalip Vs. M.Samsudeen reported in 2009-4 L.W. 650 wherein this Court held that if the plaintiff consider that a particular document is voidable one, he should have filed the suit to set aside the same or cancel the same by valuing the suit under Section 40 of the Act.
9. In the case on hand, the plaintiff contended that the sale deed executed by the first defendant in favour of the second defendant on 26.03.2010 is an invalid document. The trial Court while allowing the application observed that the case put up by the plaintiff cannot be accepted for the reason that the plaintiff had admitted her thumb impression affixed in the power of attorney. The trial Court also held that the issue with regard to the execution of power of attorney should be established by the plaintiff that it was executed on different circumstances. The trail Court in paragraph No.6 specifically held that the issue with regard to the payment of Court fee and the jurisdiction of the trial Court should be tried as a preliminary issue and the trial Court also found that in the case of valuation of the suit not being correctly mentioned, the District Munsif Court may not have jurisdiction to try the suit.
10. Therefore, if the contention of the plaintiff that the issue with regard to the jurisdiction and the payment of Court fee can be decided at the time of the trial of the suit is accepted, then in case if trial Court comes to the conclusion that the valuation of the suit was not proper and that the District Munsif Court has no jurisdiction, then the purpose of conducting the trial would become as meaningless exercise. In case if the trial Court comes to the conclusion that the valuation of the suit by the plaintiff is proper and that the trial Court has jurisdiction, then the trial Court can proceed with the trial Court and decide the suit. In any event, the trial Court cannot dismiss the suit while deciding the preliminary issue. Even if the valuation was not done properly, the plaintiff can be directed to amend the plaint and pay the additional Court fee and with regard to the jurisdiction also, if the Court comes to the conclusion that the District Munsif Court has no jurisdiction, the plaintiff can be directed to present the suit before the appropriate Court which has jurisdiction.
11. Though the defendants have filed the application under Order 14 Rule 2 of the Code of Civil Procedure, the ingredients of the prayer would clearly establish that it was an application filed under Section 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. As laid down in the judgment reported in V.R.Gopalakrishnan Vs. Andiammal reported in 2002(2) CTC513 the issue with regard to the payment of Court fees has to be decided as a preliminary issue. However the trial Court shall decide only the issue with regard to the valuation of the suit and the issue with regard to the jurisdiction of the District Munsif Court as a preliminary issue. It is needless to say that the trial Court shall not venture into deciding the suit while deciding the preliminary issue. It is also made clear that the trial Court shall decide the issue independently with regard to the payment of Court fee and jurisdiction without being influenced by the observations made in the fair order passed in I.A.No.268 of 2011.
12. In these circumstances, I do not find any error or irregularity in the order passed by the trial Court. The Civil Revision Petition is devoid of merits and the same is dismissed. Consequently, the connected Miscellaneous Petition is also dismissed. 16.12.2014 Index :Yes/No Internet :Yes/No ssl To The District Munsif Court, Ottanchatram. M.DURAISWAMY,J.
ssl C.R.P.(MD)(PD).No.2301 of 2014 and M.P.(MD)No.1 of 2014 16.12.2014