We-build Pvt. Ltd. Vs. C. Kamaleswaran and anr. - Court Judgment

George Vadakkel, J.

1. This revision arises from a suit for settlement of accounts. The plaintiff estimates that on settlement of accounts a sum of Rs. 1,25,000/- would be due to him. Accordingly he has paid a court-fee of Rs. 12,480/- on the plaint One of the contentions raised by the 1st defendant is that the suit has not been properly valued and that the court-fee paid is insufficient. On this contest the lower court raised the following question as the 2nd issue in the case:--'whether proper or sufficient court-fee has been paid by the plaintiff in respect of the several reliefs sought for in the plaint ?'

2. Though Section 12 (2) of the Kerala Court-fees and Suits Valuation Act. 1959 provides that all questions arising from pleas advanced by the defendant relating to proper valuation of the suit and sufficiency of the court-fee paid on the plaint 'shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim', the lower court did not do so in the instant case, for the reason (as stated bv that court) that neither party alerted the court of the said provision or of the requirement to hear and decide issue 2 as a preliminary issue. As a result the suit was tried and both sides adduced evidence on all the issues concerning merits of the claim. Evidence was closed on 17-3-1981. The case was posted to 26-3-1981 for arguments. On that day the plaintiff's counsel finished his arguments. The case, was adjourned to 3-4-1981 for arguments by the defendants' counsel. On that day the defendants' counsel appears to have pointed out that issue 2 should have been decided as a preliminary issue, and pressed for hearing and deciding it as a preliminary issue before deciding the other issues. Arguments were heard on issue 2 alone on 3-4-1981 and the case was adjourned to 7-4-1981 to answer that issue. At this stage the plaintiff filed a petition to delete issue 2 on the ground that the 1st defendanthas not pressed for hearing issue 2 as a preliminary issue before evidence was recorded affecting him on the merits of the claim, and that he cannot after the recording of evidence affecting him on the merits of the claim invite a finding thereon. The lower court agreeing with the stand taken on behalf of the plaintiff as stated above deleted issue No. 2. In so doing the lower court relied on the decisions of this Court in Janaki Amma v. Krishnan (1978 Ker LT 463) and Sumithra v. Kamala Bair (ILR (1979) 2 Ker 124) : (AIR 1979 Ker 164) which clearly support the stand taken by the plaintiff.

3. Relying on A. V. Subrahmanyam v. C. Venkataramanamma (AIR 1981 Andh Pra 147) the learned counsel for the 1st defendant-revision-petitioner contended before the learned single Judge that the provision in Section 12 (2) is not mandatory and that non-compliance therewith will not affect the jurisdiction of the court to deal with a question arising from a defendant's plea relating to proper valuation of the suit and sufficiency of the court-fee even after recording of evidence affecting him on the merits of the claim. On behalf of the plaintiff-respondent his learned counsel argued before the learned single Judge that Section 12 (2) is mandatory and also contended that a defendant cannot be said to have been aggrieved by a finding entered that the suit has been properly valued or that the court-fee paid is sufficient, and that, therefore, a defendant cannot be said to be aggrieved also by the court deleting an issue relating to proper valuation of the suit and sufficiency of the court-fee paid. The learned single Judge inking the view that these are questions which require to be examined by a larger Bench has referred the case to a Division Bench.

4. One of us in Janaki Amma v-Krishnan (1978 Ker LT 463) has pointed out that 'the court's power to decide the question of sufficiency of court-fee paid on a plaint is, under the Court-fees and Suits Valuation Act, 1959, well defined' and has enumerated the five stages in the life of a suit in the trial court when the court can exercise that power. As regards the second time when the court can consider and decide that question it is stated therein as follows:--

'Secondly, thereafter the court can take up this question for decision only if a defendant raises the same by his written statement filed before the first hearing or before evidence is recorded on the 'merits of the claim' (as defined in the Explanation to Section 12) and when so raised, the court has to give a decision thereon before evidence is recorded affecting such defendant--Section 12 (2).'

The same was reiterated by the same Judge in Sumithra v. Kamala Bair (ILR (1979) 2 Ker 124) : (AIR 1979 Ker 164), where it is said (at p. 166) :

'As pointed out by the Full Bench in the Andhra case, it is imperative that all questions relating to value for the purpose of determining the jurisdiction of the court which are raised by a written statement have to be heard and decided by the court before the suit enters evidence stage as regards the 'merits of the claim' which expression as per the Explanation that follows sub-sec. (5) of Section 12 means 'matters which arise for determination in the suit, not being matters relating to the frame of the suit, misjoinder of parties and causes of action, the jurisdicuon of the court to entertain or try the suit or the fee payable but inclusive of matters arising on pleas of res judicata, limitation and the like''.

It was further said therein that Section 13 of the Act would be of no assistance to hear and decide such questions after the suit has entered the stage of recording evidence on the merits of the claim affecting the defendant who has raised the question. We are in complete agreement with these two decisions.

5. The scheme of Section 7 of the Court-fees Act, 1870 (Central Act) is that the question of court-fees is one solely between the plaintiff and the State. Therefore, it was the duty of the court, under the successive Codes of Civil Procedure to verify whether the relief claimed is undervalued, and/or whether sufficient court-fee has been paid. Section 31 of 1859 Code required the Court to verify whether the claim is improperly valued or being properly valued. whether the court-fee paid is insufficient; and in either case, if it appears to the court that it is so, to give time to the plaintiff to make the proper valuation and/or pay the correct court-fees: and on non-compliance by the plaintiff, toreject the plaint. Section 54 of the 1877 Code was also to the same effect. This requirement now finds expression in the present Code of 1908 in Order VII, Rule 11, Cls. (b) and (c) which provide for rejection of the plaint: '(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' and '(c) where the relief claimed is properly valued, but the plaint is written on paper insufficiently stamped and the plaintiff does not make good the deficiency within the time, if any, granted by the court'.

6. No doubt, under this scheme the plaintiff is not the sole arbiter who is to decide on these questions and the court has to decide the same. However, the defendant does not come into the picture, for the court has to decide the same at the threshold or in other words (borrowing the expression used in the C. C. Reddy case (1968) 2 Andh WR 618 (FB)) 'before the curtain rises.' But how can a court decide these questions at this stage unless somebody brings to the notice of the court the improper valuation of the relief or the insufficiency of the court-fee paid on a relief properly valued and without examining the questions after hearing opposing arguments? Normally, and in very many cases, the suit will pass the threshold and the 'curtain would rise' without the court noticing the improper valuation of the relief and/or the insufficiency of the court-fee paid thereon. Therefore, thereafter, when the defendant appears on the scene, he was allowed to assist the court by alerting it to the fact that a plaint which ought to have been rejected has been entertained improperly. When is he to inform the court of such improper entertainment of the plaint? There was no specific provision in this regard and so, being a matter of improper entertainment of the plaint, he could raise it at any time during the course of the suit. He can wait till the evidence is over, and depending upon the assessment thereof choose to raise the questions or not to raise them, as it suits him, If he calculates that it is likely that the suit would be dismissed on merits he would not press for its rejection on the ground of undervalution of the plaint or insufficiency of the court-fee paid thereon,resulting in non-levy of proper court-fees. If he reckons that the suit would be decreed on merits of the claim, he would opt to press for the rejection of the plaint to the surprise and embarrassment of the plaintiff, and resulting at least in some cases in rejection of the plaint because the plaintiff is not able to correct the valuation and pay the deficit court-fee within the time granted in that behalf by the court. In -such cases where the plaint is rejected after full trial -- the court cannot dismiss the suit but can only reject the plaint --the trial is only an exercise in futility and the time taken for trial is a waste. It should be remembered that rejection of the plaint on any of the grounds mentioned in Order VII, Rule 11 does not, as provided in Order VII, Rule 13 of its own force preclude the plaintiff from suing again on the same cause of action, and if this happens the court will be engaged in trying the same question over again in the second suit instituted on the same cause of action,

7. Section 12 of the Kerala Court-fees Act. 1959 defines the different stages at which the court is to examine and verify the questions of under-valuation of the relief claimed by the plaintiff and/or insufficiency of the court-fee paid on the plaint. The defendant has, thereunder, a statutory right to inform the court of improper valuation of the plaint and/or of insufficiency of the court-fee paid on the plaint, and to assist the court in the determination of proper value of the claim and correct court-fee, but only to inform and assist. In Rathnavarmaraja v. Smt. Vimla (AIR 1961 SC 1299) the Supreme Court, referring to Section 12 (2) of the Madras Court-fees and Suits Valuation Act (14 of 1955) which is identically worded as Section 32 (2) of the Kerala Act (but for the words : 'but, subject to the next succeeding sub-section not later occurring in Section 12 (2) of the Kerala Act) said that 'this section only enables the defendant to raise a contention as to the proper court-fee payable on a plaint and to assist the court in arriving at a just decision on that question'. The same decision is also authority for the position that, therefore, a defendant who raises a question of proper valuation or of sufficiency of court-fee and fails cannot becharacterised as an aggrieved person who can take up in revision the order thereon repelling the defendant's con-tension to the High Court, unless (as stated in Shamsher Singh v. Rajinder Prashad (AIR 1973 SC 2384) 'the question of court-fee involves also the question of jurisdiction of the court'.

8. In the light of the above discussion, we fail to see as to what else can be the object of Section 12 (2) of the Kerala Act than to avoid the consequences following from allowing a defendant to alert the court at any time in the course of the suit that the plaint is to be rejected as undervalued or insufficiently stamped -- consequences to which we have hereinbefore adverted to. This object is achieved by Section 12 (2) by providing that 'all questions arising on such pleas' (i. e. that the subject-matter of the suit has not been properly valued and/or that the fee paid is not sufficient) 'shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim.' Note that Section 12 (2) opens by requiring the defendant to plead such contentions. (if any) by his written statement filed before the first hearing of the suit or at any rate, before evidence is recorded on the merits of the claim, and then, thereafter, requires the court to hear and decide the questions arising on such pleas before evidence is recorded affecting the defendants. Next succeeding Sub-section (3), deals with a situation where 'a defendant is added after issues have been framed on the merits of the claim'. A defendant so added can raise such pleas only 'if the court so permits'. Under that sub-section, if with the permission of the court the defendant so added, raise such please, the court is required to hear and decide, the questions arising on such pleas 'before evidence is recorded affecting such (added) defendant, on the merits of the claim'. Explanation to Sub-section (3) warns that a defendant added as a successor or a representative-in-interest of a defendant who was on record before issues were framed on the merits of the claim and who had an opportunity to file a written statement raising the pleas of improper valuation of the suit or insufficiency of the court-fee, cannot avail of Sub-section (3). These provisions make it clear that it is peremptory that thecourt hears and decides the questions of improper valuation of the suit and/or insufficiency of the court-fee paid on the plaint before recording of evidence affecting the defendant on the merits of the claim, and that after the suit has entered the stage of recording of evidence affecting the defendant on the merits of the claim, the court cannot take up the said questions.

9. The learned counsel for the revision petitioner placed strong reliance on A. V. Subrahmanyam v. C. Venkata-ramanamma (AIR 1981 Andh Pra 147) to contend that Section 12 (2) of the Kerala Act is not mandatory. We need only notice that as stated in that decision itself (para 4 at p. 1501 Clause (b) of Sec-lion 11 (1) of the A. P. Act -- Sub-section (1) of Section 11 of that Act corresponds to Section 12 (1) of the Kerala Act -- provides that 'the decision of the court under Clause (a) regarding the proper court-fee payable shall be subject to review fromtime to time as occasion requires' while second half of Section 12 (1) of the Kerala Act corresponding to Clause (b) of Section 11 (1) of the A. P. Act provides that the decision under Sub-section (1) of Section 12 of the Kerala Act would be 'subject to review, further review and correction, in the manner specified in the succeeding subsections', to hold that the principles staled in Subrahmanyam's case have no application to cases arising under the Kerala Act. The A. P. High Court in Ihe above mentioned case held that Section 11 (1) (b) of the A. P. Act 'provides for these periodic and frequent disputes being raised regarding the proper court-fee payable'. (Ibid). In that view that court further held that Section 11 (2) of the A. P. Act corresponding to Section 12 (2) of the Kerala Act is not mandatory but only directory. The provision in Section 12 (1) of the Kerala Act that the decision of the court on the question of proper fee payable on the plaint given before registration of the plaint would be 'subject to review, further review and correction in the manner specified in the succeeding sub-sections: on the other hand, rules out the power of the court to decide that question except in accordance with and as specified in the several sub-sections which follow Sub-section (1) of Section 12.

10. Another decision cited at the bar is Mohd. Shahbuddin v. A. S. Hussain(AIR 1976 Andh Pra 199). In that case the court while decreeing the suit directed the plaintiff to pay the deficit court-fee (for which the court has power in view of Section 11 (1) (b) of the A. P. Act) and the plaintiff paid the same. The defendants unsuccessfully challenged the decree and judgment on merits before the first appellate court. They then preferred a second appeal in the High Court. Before the High Court a contention was raised that the trial Court's decision was without jurisdiction, as it had not decided the issue relating to sufficiency of court-fee as required by Section 11 (2) of the A. P. Act. The High Court held that the failure to decide the question as required by Section 11 (2) of the A. P. Act would not render the decision on merits of the claim illegal and without jurisdiction. It was however pointed out that the proper procedure was to hear and dispose of the issue on court-fee before hearing of the suit under Order XVIII of the Code, that is, before the suit enters the evidence stage. This decision also has no bearing on the point mooted in the case on hand.

11. Another contention advanced onbehalf of the defendant-respondent isthat the court having framed an issuerelating to the sufficiency of the court-fee paid on the plaint, under Order XX, Rule 5 of the Code the court was bound todecide that issue. Rule 5 above-mentionedrequires the court to state its finding ordecision on each separate issue withthe reasons therefor, unless the findingupon any one or more of the issues issufficient for the decision of the suit.In view of what is said hereinbefore itis clear that a finding on an issue relating to the sufficiency of the court-feepaid one way or other is of no consequence in the matter of deciding the suit by decreeing it or dismissing it, though a finding entered thereon that the court-fee paidis insufficient will, where the plaintifffails to make good the deficit court-feewithin the time allowed in that behalf,result in the rejection of the plaintwithout any decision of the suit itself.

12. We will here usefully read Order XIV, Rule 1 :--

'1. Framing of issues. (1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.

(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.

(3) Each material proposition affirmed by one party and denied by the other shall form the subject of distinct issue.

(4) Issues are of two kinds -

(a) issues of fact,

(b) issues of law.

(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements, if any, and after examination under Rule 2 of Order X and after hearing the parties or their pleaders ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.

(6) Nothing in this rule requires the Court to frame and record issues where the defendant at the first hearing of the suit makes no defence.'

13. The question of sufficiency of the Court-fee is neither a proposition of law or fact which a defendant must allege in order to constitute his defence. On the high authority of the Supreme Court in Ratbnavarmaraja v. Vimla (AIR 1961 SC 1299).'the Court-fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to subject the trial of an action, and as already pointed ouf on Ihe samp authority, the defendant is allowed to raise the question of sufficiency of court-fee only in order to assist the court in arriving at a just decision on the question.' Therefore, that question is not a 'material proposition of fact or of law' upon which the parties can be said to be at variance, though they may be at variance on that question. Order XX Rule 5 speaks of issues framed under Order XIV Rule 1 of the Code, and not of the questions of the court-fee raised by the defendant pursuant to the enabling provision in the Court-fees Act in that behalf in order to assist the court in determining the sufficiency or otherwise of the court-fee paid.

14. Even assuming that such a Question is an issue framed under Order XIVRule 1 (5), in view of the provision in Section 12 (2) of the Court-fees Act readwith Order VII Rule 11 (b) and (c), it is an issue the finding whereon, may in some cases, if the same is against the plain-tiff result in the rejection of the plaint and not in the dismissal of the suit, as already stated. Under Order XIV Rule 5 the court may at any lime before passing a decree strike out any issue that may appear to it to be wrongly framed or introduced. An issue, the finding whereon will not be helpful to decide the suit one way or the other, is an unnecessary issue and therefore under Order XIV, Rule 5 it can be deleted. Shortly put, the determination of the question of court-fees is called for not because such determination is necessary to decide the suit, but to ensure that 'revenue is collected for the benefit of the State' and the Court-fees Act obliges the court to see to such collection and enables the defendant to assist the court in that function.

15. In view of what is said above, the Court has to determine the question of correct court-fee at the stages stated in the Kerala Court-fees Act, 1959 and in the manner specified therein. Under Section 12 (2) of that Act, where defendant raises such a question in the manner mentioned in that provision the court is required to decide the same before evidence is recorded affecting such defendant on the merits of the claim. A defendant who chooses to assist the court in the matter of collection of the correct court-fees by raising that question, ought also to alert the court of that question raised by him at the proper stage at which the court is required by the statute to determine it. If he is not prompt in that, it only means that he does not go all the way to assist the court in determining the correct court-fee leviable on the plaint and the court would be justified in treating such a question as one not arising in the case and in deleting it on that ground.

This civil revision petition fails and is dismissed but without any order as to costs.