Marati Jamuna Bai vs Junuthula Janardhan Reddy

The Civil Revision Petition No. 5464 of 2017 is filed against the order passed in I.A. No.963 of 2016 in O.S. No.45 of 2016, dated 11.09.2017 on the file of the II Additional District Judge at Warangal.

The Civil Revision Petition No. 5438 of 2017 is filed against the order passed in I.A. No.226 of 2017 in O.S. No. 45 of 2016 dated 11.09.2017 on the file of the II Additional District Judge at Warangal.

The petitioners seek rejection of the plaint on the following grounds :

(i) The marriage of the plaintiff was performed in the year 1977 and at the time of her marriage, she was given sufficient amount and sold ornaments and she ceased to be a member of the family. Since the marriage of the plaintiff was performed much prior to the commencement of amendment to Section 29A of the Hindu Succession (Andhra Pradesh) Amendment Act, 1986 and the plaintiff being married daughter, has no right to claim partition of the suit properties.

(ii) As per the plaint pleadings, the plaintiff and defendant Nos. 1 to 9 are not in possession of the suit properties and defendant Nos. 10 to 13 are in possession of the same. Since the plaintiff and defendant Nos. 1 to 9 are not in possession of the suit properties, the plaintiff should have paid the court fee under Section 34 (1) of the A.P. Court fees and Suits Valuation Act, but the plaintiff paid court fee under Section 34 (2) of the Act as if she is in joint possession.

(iii) The suit is barred by limitation.

The above two Interlocutory Applications are filed for rejection of plaint before the trial Court on the ground that proper Court fee has not paid under Section 34 (1) of A.P.C.F. & S.V. Act. Thus, after considering the arguments of both sides, the trial Court directed the plaintiff to pay Court fee under Section 34 (1) of the A.P. Court Fees and suits Valuation Act within a week from the date of order, failing which plaint stands rejected.

Aggrieved by the same, the two C.R.Ps are filed by the petitioner stating that the Court failed to appreciate that the co-owners are all deemed to be in joint possession. Payment of Court fee for a suit for partition is a mixed question of fact and law and has to be decided after the completion of trial. In the plaint they specifically pleaded that they are in joint possession. They also stated that sale itself is not valid and not binding on them. The title was never transferred but the trial Court without considering the same wrongly interpreted the provisions and came to conclusion resulting in miscarriage of justice.

O.S. No.45 of 2016 is filed for partition of the properties. During the pendency of the suit defendant No.10 in the suit filed an application for rejection of plaint under Order VII Rule 11 CPC stating that plaintiff got issued legal notice dated 5.02.2016 calling upon and defendant Nos. 11, 12 and 13 to put her in possession of the properties in annexure of the legal notice i.e. suit schedule “A” and “B” properties. As the plaintiff clearly admitted that they are in possession of the suit schedule property, is not entitled to file the suit to declare that she is entitled to 1/6th share in the suit schedule property by paying Court fee of Rs.200/- under Sec. 34 (2) of APCF & SV Act. Neither the plaintiff nor the defendant Nos. 1 to 9 are in possession of the suit schedule “A” and “B” properties either individually or jointly. As such Court fee is to be paid under Section 34 (2) of APCF & SV Act. Plaintiff has no right to seek partition by declaring that she is entitled for 1/6th share in the suit schedule properties since her marriage was performed much prior to the date of coming into force of the Hindu Succession Amendment Act, 1986, as such she is not entitled for partition and the suit is liable to be rejected and that the suit is hopelessly barred by limitation. She has not impleaded the necessary parties and sought for declaration and cancellation of entries in which one Polama Vijay Kumar, Kesava Reddy, Venkatpathi Sa, were recorded as pattedars in “B” schedule property. As such suit is liable to be dismissed for non-joinder of necessary parties.

In a counter filed by the respondent No.1 in the suit, he stated that he paid Court fee properly and as explained in Para No.9 of the plaint it is to be decided by the Court in the suit after framing of the issue. The petitioner has not stated under which provisions of Limitation Act, the suit was barred. He clearly mentioned when the cause of action for filing of the suit arose as such the suit is within time.

The trial Court observed that the plaint is rejected when it is insufficiently stamped if the relief claimed by the plaintiff is properly valued, but plaint is written upon a paper insufficiently stamped and if he fails to pay the requisite court fee within the time fixed or extended by the Court, plaint will be rejecting, the suit must be treated as instituted from the date of presentation of the plaint as well as payment of court fee.

The counsel for the respondents relied upon the decision reported between Molugu Ram Reddy and Others Vs. Molugu Vittal Reddy and Others 2011 (5) ALD 522 (FB) dated : 11.04.2011 wherein it was held that,

“an order rejecting a plaint is a decree as defined in Section 2 sub-section (2) and is appealable as such” and that, “when the plaint is rejected for non-payment of proper Court fee only an appeal would lie against an order but not the revision”.

In the said judgment it was also observed as under :

“Whether the suit is dismissed after full trial or whether the plaint is rejected either because there are non-curable defects or curable defects (which remain unrectified), the remedy of the plaintiff is only to prefer an appeal under Section 96 of the CPC. There are mainly four reasons for this. First, reading of Section 2(9) with Sections 2(2) and 2(14), judgment of the Court rejecting the plaint under Order VII Rule 11 is a ‘deemed decree’ not an ‘order’ against which the remedy is by way an appeal under Section 96. Secondly, from reading of Section 104 (1) (i) and Order XLIII(1) together it is irresistible that judgment or the order rejecting the plaint is not appealable by way of miscellaneous appeal, as is the case in appeals against orders. Thirdly, Section 104(1)(i) read with Order XLIII(1) (a) provides a miscellaneous appeal only when 'plaint is returned under Order VII Rule 10' except when the procedure under Rule 10A of Order VII was followed. Fourthly, the judgment of the Court rejecting the plaint not being one under Sections 35A, 91, 92 or 95, or an order under Section 94(a) read with 104(h), no miscellaneous appeal would lie, when a plaint is rejected under Order VII Rule 11. Thus, a judgment rejecting the plaint; not being an order appealable by way of miscellaneous appeal under any of the provisions as contemplated under Section 104 read with Order XLIII – is only appealable under Section 96”.

The counsel for the respondents argued that Order VII Rule 11(b), (c), (e) and (f) are curable defects. Whereas Clauses (a) and (d) are non-curable defects. Petitioner herein claimed that Court fee is not properly valued and also petitioner filed an application before the trial Court for rejection of the plaint on the ground that court fee was not collected properly and also that is not within the limitation. The suit would be barred when the jurisdiction of the civil Court is expressly or by implication ousted and/or when the suit is hit by the doctrine of res judicata or under any of the Rules in the First Schedule or those made under Section 122 or Section 125. But the petitioner has not made out any of the above grounds to substantiate his version that it is barred by limitation. The present petition is filed for a curable remedy of non-payment of the Court fee under proper section. As such the trial Court rightly directed him to pay the Court fee within a week under proper provisions of law. The petitioner also stated that the marriage of the plaintiff was performed prior to the commencement of the said Act. The trial Court clearly held that the said fact was not raised in the plaint at the alleged point of time.

The trial Court also extracted Paragraph 9 of the plaint. Even as per the plaint averments “A” and “B” schedule properties are exclusive properties of defendant Nos. 10 to 13. Accordingly a legal notice was also issued. Asking them to vacate the properties put defendants 1 to 9 in the possession of the said property, as such he has to pay the court fee under Sec. 34 (2) of the A.P. Court Fees and Suits Valuation Act and accordingly permitted them to pay the said court fee within a week from the date of the order. The contention of the petitioner that he stated in the plaint that he was in joint possession with the co-owners with the co-sharers. But his contention in the legal notice itself is contrary to his pleadings in the plaint and thus the trial Court directed him to pay court fee under Section 34 (2) of the APCF and SV Act. The contention of the revision petitioner is that the court fee in a suit for partition is mixed question of fact and law and the same has to be decided after the completion of trial. Purchaser has no right to plead joint possession. The said contention cannot be accepted. Therefore, this Court finds that there are no merits in the C.R.Ps and accordingly the same are dismissed.

In the result, the Civil Revision Petition Nos. 5464 of 2017 and 5438 of 2017 are dismissed by confirming the orders in I.A. No. 963 of 2016 in OS No. 45 of 2016, Dated 11.09.2017 and IA No. 226 of 2017 in OS No. 45 of 2016, Dated 11.09.2017 both on the file of the II Additional District Judge, at Warangal. Petitioner is directed to deposit the Court fee within one week from the date of receipt of order.

As a sequel, pending miscellaneous petitions, if any, shall stand dismissed as infructuous. No order as to costs.