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TMI Blog2013 (6) TMI 916X X X X Extracts X X X X X X X X Extracts X X X X ..... ents at the time of trial and resultantly, dismissed the Petition without costs. 2. Challenging the Order of dismissal dated 7.9.2010 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. 3. 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 4.7.2006 (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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 ₹ 2,000/- and payment of Court-fee at ₹ 151/- under Sections 25(d) 29(c) of Tamil Nadu Court Fees and Suits Valuation Act, 1955, by the Respondents/Plaintiffs, is an erroneous one. 10. 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 15.7.2008 and as such, the Respondents/Plaintiffs have to value the Plaint under Section 40 of Tamil Nadu Court Fees and Suits Valuation Act, 1955. 11. 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 51/2 cents to one Suresh by virtue of Sale Deed, dated 11.7.1991. 12. Continuing further, the Respondents and their father have appointed the 1st Petitioner as Power Agent by means of Deed of Power of Attor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide 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, men the Court shall proceed with the hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 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. 18. Furthermore, he brings it to the notice of this Court to the order dated 12.6.2007 passed by this Court in CRP (PD) Nos. 1660 to 1663 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 judgment in Siddha Construction (P) Ltd. v. M. Shanmugham, 2006 (5) CTC 255, 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 part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Plaintiff did not ask for the relief of possession or consequential injunction or any exclusive right of use. Further a reading of 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. 19. 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) (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. 20. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 996 Mad 224. 24. 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, AIR 1944 Pat 17 (FB). 25. 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, AIR 1956 Nag 195. 26. A Plaintiff may overvalue or undervalue the Suit for the purposes of avoiding Court of a certain grade. 27. 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. 28. 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Order 14, Rule 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 a be taken: AIR (23) 1936 Pat. 250, Ref. 35. 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, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act that the Written Statement has been filed as early as on 24.3.2011, 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 ₹ 51/- in all paid by the Respondents/Plaintiffs under Sections 25(d) 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 15.7.2008, 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 Nad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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