Judgment:
Application filed under Order XIV Rule 8 of OS Rules read with Order VII Rule 11 and section 151 CPC to reject the plaint with exemplary cost and dismiss the suit in C.S.NO.366 of 2008.
P.R.SHIVAKUMAR, J.
ORDER
1. The first defendant in the suit is the applicant in the application. The suit has been filed by the first respondent herein against the applicant and 23 others, who figure as respondents 2 to 24 in the application, for the relief of partition, permanent injunction and rendition of accounts.
2. According to the plaint averments, the suit properties and other properties originally belonged to the Hindu Undivided Family consisting of Kanhaiyalal Rameshwar Prasad Nevatia and his three sons, namely Rameshwar Prasad Nevatia, Srikrishna Nevatia (the father of the plaintiff/father of the first respondent) and Balakrishna Nevatia. The further case of the first respondent/plaintiff is that the plaintiff and the defendants 5 to 8 are the children of Srikrishna Nevatia and Bimla Devi. Srikrishna Nevatia, who is the father of the plaintiff and defendants 5 to 8, suffered a tragic death on 09.09.1975 due to a car accident that took place at Veppur in Villupuram District while he was travelling from Rameshwaram to Chennai. Till his death he was a member of the Kanhaiyalal Rameshwar Prasad Nevatia HUF. Subsequently, except the property in Haveli, Rajasthan, which was impartible, all other properties of Kanhaiyalal Rameshwar Prasad Nevatia HUF were partitioned on 29.02.1980. As per the partition, the shares of the HUF held in the companies that have been arrayed as defendants 9 to 24, were allotted to the inner HUF, namely Srikrishna-Pramod Kumar Nevatia HUF. The present suit has been filed for the division of the said HUF, namely Srikrishna-Pramod Kumar Nevatia HUF, of which the plaintiff and the defendants 1 to 8 are members. Plaintiff and defendants 5 to 8 represent the branch of Srikrishna Nevatia and the defendants 1 to 4 represent the branch of Pramod Kumar Nevatia, who expired on 01.02.2001. As kartha of the family, Srikrishna Nevatia was entitled to collect all bonus shares and other benefits. Similarly, after the death of Srikrishna Nevatia, Pramod Kumar Nevatia, the father of the defendants 1 to 4 as kartha of their family was in receipt of the bonus shares. During the lifetime of Srikrishna Nevatia and thereafter during the lifetime of Pramod Kumar Nevatia, they used to collect such bonus shares and other benefits, encash the same and make payments to the members of the joint family. After the death of Pramod Kumar Nevatia, the first defendant (the applicant in the application), without informing the death of his father, continued to receive the above said benefits in his father's name and encashed the same as if he was alive. Investments in shares had been made in the name of the plaintiff and in the name of the father of the defendants 1 to 4 jointly and individually. But the fund for such investments came from the joint family estate. Pramod Kumar Nevatia, the father of the defendants 1 to 4 did not have any self-acquisitions. Thereafter, the 6th defendant wanted to start a business, for which Pramod Kumar Nevatia did not agree. In order to arrive at an amicable settlement Rameshwar Prasad Nevatia and Balakrishna Nevatia were appointed as arbitrators. They passed an interim award on 01.02.1985 and a final award on 28.02.1994. But, Pramod Kumar Nevatia, the father of the defendants 1 to 4 and the 6th defendant had disputes over the same, pursuant to which proceedings were dragged to the court in O.P.No.95/1995 and O.P.No.865/1997. As no partition was effected, Pramod Kumar Nevatia, the father of the defendants 1 to 4 filed a suit for partition on the file of this court in C.S.NO.354/1986. Subsequently, the same was transferred to the City Civil Court, Chennai and re-numbered as O.S.NO.15523/1996. The said suit was subsequently dismissed for default in 2006. Similarly, the 6th defendant initiated proceedings before this court in C.S.No.603/1987 for partition, but the same was withdrawn in order to proceed with the arbitration proceedings. However, the award passed by the arbitrators was set aside by the court and the same was confirmed in appeal by a Division Bench in O.S.A.No.239/2001 and O.S.No.264/2001. The 6th defendant, thereafter informed that he had decided not to proceed further with the arbitration proceedings and he intended to effect a compromise with the first defendant alone. As such, the defendants 2 to 4 on the one hand and the 6th defendant on the other hand were at logger heads. Because of the same, the plaintiff has to approach the court with the present suit for partition. According to the plaint averments, the plaintiff is entitled to 1/6th share in the suit properties.
3. The first defendant Ashish Nevatia alone has come forward with the present application under Order VII Rule 11 CPC praying for the rejection of the plaint on the following grounds:-
i) The suit is barred by law, namely the provisions of Order II Rule 2 CPC in view of the earlier suit filed by the 6th defendant Pankaj Kumar Nevatia as C.S.NO.603/1987 for partition, in which the present plaintiff figured as the 3rd defendant. The said suit was withdrawn by the 6th defendant and the same stood dismissed as withdrawn by order dated 30.01.1997. As a defendant in a partition suit shall also be deemed to be a plaintiff, the failure on the part of the plaintiff herein, who was the third defendant in the former suit, to get him transposed as plaintiff and to get the leave of the court to initiate fresh proceeding constitutes a bar for a subsequent suit on the same cause of action and hence the present suit is barred by law.
ii) The plaint averments do not disclose any cause of action.
iii) The fact that the arbitrators' award was set aside could not be taken as a permission to the parties to proceed with the partition of properties by way of civil proceedings, as no liberty has been granted to the parties by the Division Bench, to proceed with a partition suit. As against the judgment of the Division Bench made in O.S.A.NO.239/2001 and O.S.A.No.264/2001, the 6th defendant has preferred Special Leave Petitions in S.L.P.(Civil) Nos.11685 to 11686 of 2008. The plaintiff herein is also a party to the said SLPs. While the parties are contesting the proceedings, a false averment has been made as if there is collusion between defendants 1 to 4 and 6th defendant. The suit for partition during the pendency of the Special Leave Petitions filed before the Supreme Court is barred.
iv) The suit is also liable to be dismissed for suppression of facts.
v) There is gross under valuation of the reliefs prayed for. The relief of partition ought to have been valued on the basis that the plaintiff had been excluded from possession, as it is clear from the plaint averments that the plaintiff has admitted that he had been excluded from the possession of joint family properties in the form of shares, which are admittedly in the exclusive possession of the father of the first defendant.
vi) The plaintiff has chosen to file the suit omitting to mention other properties belonging to the HUF and the suit is bad for partial partition.
vii) The plaint is also liable to rejected on the ground of suit being vexatious, misuse of law and abuse of process of court.
4. The plaintiff has filed a counter affidavit refuting the contentions raised by the applicant/first defendant in support of his prayer for rejection of the plaint. Others have not chosen to file any counter affidavit, either supporting or opposing the application filed by the first defendant.
5. Now the point for consideration is "whether the plaint is liable to be rejected on any one of the grounds alleged by the applicant/first defendant?"
6. The arguments advanced on both sides were heard. Affidavit, counter affidavit, plaint and other documents were perused.
7. The relevant rule for rejection of plaint is Order VII Rule 11 CPC. By virtue of Order I Rule 3 of the Madras High Court Original Side Rules, the above said rule of CPC is made applicable to the suits filed on the Original Side of the High Court of Madras. The rule enumerates the grounds on which a plaint can be rejected. Unless the petitioning-defendant is able to bring the case strictly within the ambit of the above said rule, he will not be successful in getting an order of rejection of the plaint. For better appreciation and for the sake of convenience, the rule is extracted hereunder.
" 11.Rejection of plaint.- The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
(e) where it is not filed in duplicate;
(f) where the plaintiff fails to comply with the provisions of rule 9.
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff."
8. In this case, the sub clauses 'c, e and f' of Rule 11 under Order VII CPC do not get attracted. The plaint has passed through the above tests in the office itself and found to be filed in compliance with those sub-rules and hence the was taken on file and numbered as a suit. The applicant/first defendant relies on clauses 'a', 'b' and 'd' of Rule 11 under Order VII CPC alone. We have to consider whether the applicant/first defendant is able to bring the plaint within any one of those provisions to warrant an order rejecting the plaint.
9. The first and foremost contention of the applicant seems to be based on sub clause 'd' of Rule 11 under Order VII CPC. According to the applicant/first defendant, the suit appears from the statements found in the plaint to be barred by law. In support of his contention, the applicant/first defendant would refer to Order II Rule 2 CPC and Order XXIII Rule 1 of CPC. According to the applicant/first defendant, the present suit is barred by law because of the institution of a similar suit in respect of the very same family properties for the very same relief, namely partition, by the 6th defendant in the present suit, in which the plaintiff in the present suit was also a party and that the same came to be withdrawn by the plaintiff therein, namely the 6th defendant in the present suit. According to the applicant/first defendant, in a suit for partition, not only the plaintiff, but also all the defendants, who are co-owners of the property that is sought to be partitioned, shall be deemed to be plaintiffs and when the party filing the plaint for the relief fails and neglects to prosecute the same, the other co-owner, who has been arrayed as a defendant, should have applied for his transposition as a plaintiff and continued the suit. According to the applicant, the failure on the part of such defendant to do so would amount to abandonment of a claim in the suit by the said defendant, who is deemed to be a plaintiff and since the same was done without the leave of the court to file a fresh suit, the present suit should be held to be one barred under Order II Rule 2 read with Order XXIII Rule 1 CPC.
10. Learned counsel for the applicant/first defendant refers to the averments found in the plaint itself disclosing the fact that the 6th defendant in the present suit (Pankaj Kumar Nevatia) filed a former suit (namely C.S.NO.603/1987) for partition of the family properties and he chose to withdraw the same without seeking liberty to file a fresh suit and that the suit was dismissed as withdrawn by an order dated 30.01.1997. Admittedly, the present plaintiff was not the plaintiff, who instituted the former suit. The bar provided under Order II Rule 2 CPC shall be applicable only to the plaintiff, who withdraws the suit without the leave of the court to bring a fresh suit on the very same cause of action. For better appreciation, Order II Rule 2 CPC is reproduced hereunder:
"2. Suit to include the whole claim.- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim.- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.- A persons entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted."
Nowhere in the said provision, it has been stated that a defendant, who may also be deemed to be a plaintiff, shall also be barred from bringing a fresh suit in respect of the subject matter of the suit, which was filed by another person against him and withdrawn by that person without the leave of the court.
11. Of course Order XXIII Rule 1-A of CPC permits transposition of a defendant as plaintiff in case the suing party, namely the plaintiff withdraws or abandons a suit or part of the claim. Order XXIII Rule 1 CPC provides that the plaintiff, may, at any point of time, after the institution of a suit, abandon the suit or part of his claim as against all or any of the defendants subject to certain exceptions regarding obtaining leave when the plaintiff is a minor or other person to whom the provisions of rules 1 to 14 of Order XXXII are attracted. Sub clause (3) of Rule 1 of Order XXIII CPC also empowers the court to permit the plaintiff to withdraw the suit with liberty to institute a fresh suit for the subject matter or such part of the claim, if the suit would fail by reason of some formal defect or if there are sufficient grounds for allowing the plaintiff to do so. Of course Rule 1-A of Order XXIII CPC provides an opportunity for a defendant to get transposed as a plaintiff when the plaintiff withdraws or abandons the suit or part of his claim. It reads as follows:
"1-A. When transposition of defendants as plaintiffs may be permitted.- Where a suit is withdrawn or abandoned by a plaintiff under Rule 1, and a defendant applies to be transposed as a plaintiff under Rule 10 of Order I, the court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants."
A reading of the said provision will show that it is only an enabling provision providing for the transposition of a defendant as plaintiff, if such defendant applies for such transposition. Nowhere it has been stated that a party-defendant, who fails to apply for transposition relying on the above said enabling provision, shall also be barred from filing a suit in respect of the very same subject matter at a later point of time based on a cause of action that arises for him to file such a suit.
12. The cause of action for partition shall be construed to be a continuing cause of action, which shall be available to the co-owners unless and until the same gets extinguished by operation of law. As pointed out supra, the first respondent herein/plaintiff was not the plaintiff in the earlier suit, namely C.S.No.603/1987, which was dismissed as withdrawn. Hence Order II Rule 2 and Order XXIII Rule 1(4) of CPC do not get attracted in respect of the present suit filed by the plaintiff in this case. The cause of action for the earlier partition suit filed by the 6th defendant in the present suit cannot be said to be the same on which the first respondent in the application/plaintiff in the present suit has filed the present suit for partition. On the ground of cause of action being different, it shall be held that the suit is not barred under Order II Rule 2. Even the enabling provision under Order XXIII Rule 1-A of CPC will not be used to extend the bar to a defendant in the former suit unless actually he got transposed as a plaintiff and thereafter abandoned the suit or part of the claim. Hence the contention of the applicant/first defendant that the suit is barred by law, namely the provisions of Order II Rule 2 read with Order XXIII Rule 1 CPC, because of the withdrawal of the earlier suit filed by the 6th defendant in respect of the very same subject matter, is quite un-sustainable and the same deserves to be rejected.
13. The next contention of the applicant/first defendant is that since arbitration proceedings for effecting partition was initiated and an award came to be passed by the arbitrators, the mere fact that the said award was set aside and the Original Petition filed for getting a decree in terms of the award was dismissed and the orders passed in the OPs were confirmed by the judgment pronounced by a Division Bench in OSAs, shall not give a right to the first respondent/plaintiff to file a suit for the very same relief, namely partition of the suit properties, since they are under challenge before the Hon'ble Supreme Court in special leave petitions. The contention of the applicant/first defendant seems to be that since Special Leave Petitions have been filed against the judgment of the Division Bench of the High Court in O.S.A.Nos.239/2001 and 264/2001 arising from the orders passed in O.P.Nos.95/1995 and O.P.No.865/1997, the present suit for partition shall be a parallel proceeding and hence is to be construed to be barred by operation of law. The above said contention is far from being sustainable. There is no provision in the Madras High Court Original Side Rules or the Code of Civil Procedure or any other enactment that once a suit is filed in respect of a subject matter no suit in respect of the very same subject matter can be entertained by the same court or any other court. Order II Rule 2 CPC deals with the filing of the suit based on a cause of action. What is the barred under the said provision is filing of a second suit on the very same cause of action in respect of that portion of his claim on which he has omitted to sue or intentionally relinquished. As pointed out supra, Order II Rule 2 CPC gets attracted only if the plaintiff in the former suit and the plaintiff in the subsequent suit is one and the same person or persons filing the second suit claim derivation of right through/under the plaintiff in the former suit. Furthermore, initiation of arbitration proceedings or existence of an arbitration agreement does not bar a suit being filed in respect of the subject matter, which is covered by the arbitration agreement. Under section 8 of the Arbitration and Conciliation Act, 1996, provision has been made for referring the dispute for arbitration, if any of the defendant comes forward with an application contending that there is an agreement between the parties for referring the dispute to arbitration. It seems the arbitration award in respect of the dispute between the parties came to be passed under the old enactment, namely The Arbitration Act, 1940, which provided that the parties should approach the civil court for getting a decree in terms of the award for making it executable or for setting aside the award. In this case, two original petitions came to be filed as O.P.No.95/1995 and O.P.No.865/1997, the first one for passing a decree in terms of the award of the arbitrators and the second one for setting aside the award. Admittedly, O.P.No.95/1995 was dismissed and O.P.No.865/1997 was allowed with the consequence that the award of the arbitrators was set aside. As against the orders passed in the said arbitration OPs, intra court appeals were filed in the High Court in O.S.A.Nos.239/2001 and 264/2001 and the said appeals were dismissed by a Division Bench of this court by a common judgment dated 18.12.2007. As such there is no arbitral award, which shall prevent the first respondent/plaintiff from pursuing his remedy for partition by filing a suit for the said relief.
14. In fact, the first respondent/plaintiff has cited the orders setting aside the award, which was confirmed by the Division Bench of this court in the OSAs, as the cause of action for the suit filed by him for partition. Necessary averments have been made to the effect that the 6th defendant did not accept the arbitral award and only at his instance the award was set aside, which also came to be confirmed by the Division Bench. When such is the case, the mere fact that S.L.P. (Civil) Nos.11685 and 11686 of 2008 have been filed before the Supreme Court challenging the judgment of the Division Bench pronounced in O.S.A.Nos.239/2001 and 264/2001 shall not be construed to constitute a bar for the present suit filed by the first respondent/plaintiff for the relief of partition, especially when the orders setting aside arbitral award and the judgment of the Division Bench confirming the order passed in the arbitration OPs are cited as the cause of action for him to seek the relief of partition by filing a separate suit. It should also be noticed that no stay of operation of the judgment and decree of the Division Bench made in O.S.A.Nos.239/2001 and 264/2001 confirming the orders passed in arbitral O.P.No.95/1995 and O.P.No.865/1997 has been granted by the Hon'ble Supreme Court. Under such circumstances, at the best, the applicant/first defendant may seek an order of stay for staying the suit or contend that the suit is barred by res judicata. A plea of res judicata will not be enough to reject the plaint. Such plea has to be decided by framing an issue to that effect and allowing the parties to lead evidence in support of and against such plea. Viewed from any angle, the contention of the applicant/first defendant that the plaint is liable to be rejected on the ground that Special Leave Petitions are pending against the Judgment of the Division Bench of this High Court confirming the orders setting aside the arbitral award, cannot be sustained and the same deserves to be rejected.
15. The next contention of the applicant/first defendant is that the averments made in the plaint itself would indicate that the first respondent/plaintiff is excluded from possession of the suit properties and hence the relief of partition should have been valued and court fee should have been paid under Section 37(1) and not under section 37(2) of the Tamil Nadu Court Fees and Suit Valuation Act, 1955. It is the contention of the applicant/first defendant that the first respondent/plaintiff, has been excluded from the possession of the suit properties and hence court fee should have been paid on the market value of the plaintiff's share of the properties under section 37(1) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. In support of his contention, the applicant/first defendant relies on the averments found in paragraph 16 of the plaint which is to the effect that the plaintiff is given to understand that the first defendant is holding the shares of the family which his father had collected from Dilip Nevatia. Pointing out the said averment, the applicant/first defendant has made an attempt to show that the said averment would amount to an admission that the first respondent/plaintiff has been excluded from possession of the suit properties. Paragraph 16 of the plaint reads as follows:
"this plaintiff states that when he called the 6th defendant to settle the issues, he was informed that he had decided not to proceed further with the arbitration proceeding and had decided to compromise the matter with the 1st defendant alone. The reason for this sudden change is amazing and confusing. It was the defendants 1 to 4 and the 6th defendant who were at logger heads. The plaintiff and the father of defendants 1 to 4 maintained decent relationship till the latter's death. This plaintiff is given to understand that as the 1st defendant is holding the shares of the family, which his father had collected from Dilip Nevatia, the son of the erstwhile karta of K.R.HUF and a close friend of the 1st defendant's father; the 6th defendant has decided to go along with him."
The said averment is sought to be projected as an admission that the first respondent/plaintiff has been excluded from possession of the suit property and hence the relief of partition ought to have been valued and court fee ought to have been paid under section 37(1) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 and not under section 37(2) of the said Act.
16. In support of his contention, learned counsel for the applicant/first defendant relies on an order of a learned single judge of this court (as he then was) in S.Balambal Vs. Sundaresan & nine others reported in 1996 (I) CTC 420. In the said case, reference was made to the observations made by the Hon'ble Apex Court in Neelavathi v. N.Natarajan reported in AIR 1980 SC 691, wherein it had been held in unambiguous terms that to continue to be in joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property; that it is also not necessary that he should be getting a share of some income from the property; that so long as his right to a share and the nature of the property as joint is not disputed, the law presumes that he is in joint possession unless he is excluded from such possession; that before a plaintiff could be called upon to pay court fee under section 37(1) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 on the ground that he has been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that he had been excluded from joint possession, to which he is entitled in law; that the averments in the plaint that the plaintiff could not remain in joint possession, as he was not given any income from the joint family property would not amount to his exclusion from possession and that the Supreme Court was unable to read into the plaint a clear and specific admission that the plaintiff had been excluded from possession. However, the learned single judge of this court (as he then was) chose to rely on the fact that the plaintiff was residing at Madras, whereas the property was situated at Kumbakonam and the averments in the plaint were to the effect that the defendants were enjoying exclusively the income of the property and hold that the suit for partition ought to have been valued and court fee should have been paid under section 37(1) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 and not under section 37(2) of the said Act.
17. Of course it is true that such an order came to be passed by a learned single judge of this court (as he then was) holding that the observations made by the Hon'ble Supreme Court in Neelavathi v. N.Natarajan reported in AIR 1980 SC 691, would not apply and on the other hand, a decision of a Division Bench of this court in Sridharan v. Arumugam reported in 1993 II MLJ 428 alone would apply. But the answer to the above said contention of the learned counsel for the applicant/first defendant lies in a later judgment of the Hon'ble Supreme Court in Kamaleshwar Kishore Singh vs. Paras Nath Singh & Ors. reported in 2001 (4) CTC 764. In the said case their Lordships of the Supreme Court, while interpreting a similar provision in the State of Bihar, have made the following observations:
" It is well settled that the court fee has to be paid on the plaint as framed not not on the plaint as it ought to have been framed unless by astuteness employed in drafting the plaint the plaintiff has attempted at evading payment of court fee or unless there be a provision of law requiring the plaintiff to value the suit and pay the court fee in a manner other than the one adopted by the plaintiff. The court shall begin with an assumption, for the purpose of determining the court fees payable on plaint, that the averments made therein by the plaintiffs are correct."
Upon considering the rival submissions made on both sides, this court is of the view that the view expressed by the Hon'ble Supreme Court in Neelavathi v. N.Natarajan reported in AIR 1980 SC 691, squarely applies to the facts of the case on hand. The general principle of law is that in case of co-owners, possession of one is, in law, possession of all co-owners unless ouster or exclusion is proved. In order to arrive at a conclusion that ouster or exclusion is admitted in the pleadings made in the plaint itself, there should be a clear and specific averment in the plaint that he had been excluded from joint possession to which he is entitled in law. The mere averment that the defendants or some of the defendants alone are enjoying the income from the joint property and the plaintiff's share is not given to him will not amount to a pleading of his exclusion from joint possession.
18. The first respondent/plaintiff in this case has not made any averment containing specific admission that he has been excluded from joint possession of the properties regarding which partition is sought for. When an averment is made that one of the co-owners is in possession and his possession is deemed to be, in law, the possession on behalf of all the co-owners and court fee is paid based on such plea, the court cannot take a view that there is admission of exclusion of possession based on the mere fact that the plaint also contains an averment that he is not paid his due share of the income of the suit property. When such a plea is raised by the applicant/first defendant, that can be made an issue based on which, the parties have to lead evidence and the court has to arrive at a conclusion as to the sustainability of such plea. As such, this court is not impressed by the contention of the learned counsel for the applicant/first defendant that based on the statements found in the plaint itself the plaintiff should be called upon to pay court fee under section 37(1) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 and in case of failure to do so, the plaint should be rejected.
19. All other grounds raised by the applicant/first defendant are also touching the merits of the case and they cannot be accepted as grounds on which the plaint can be rejected.
20. For all the reasons stated above, this court comes to the conclusion that there is no merit in the application filed under Order VII Rule 11 CPC praying for the rejection of the plaint and the same deserves to be dismissed. Accordingly, the application is dismissed. There shall be no order as to costs.