Neelambal and Another vs Gnanaselvam Thavapandian

Raju, J.—The above revision petition has been filed u/s 115 of the Code of Civil Procedure, against the order of the learned Subordinate

Judge, Thanjavur, dated 17.7.1995, in I.A. No. 367 of 1995 in O.S. No. 231 of 1991, whereunder the learned Subordinate Judge overruling the

objection of the petitioners (defendants 2 and 3 in the suit), came to the conclusion that the court-fee paid u/s 37(2) of the Tamil Nadu Court Fees

and Suits Valuation Act, 1955 (hereinafter referred to as ""the Act"") is legal, proper and sufficient.

Learned counsel for the petitioners relying upon the decisions in C.R. Ramaswami Aiyangar, represented by his mother and next friend Lakshmi

Ammal Vs. C.S. Rangachariar and Others, , Kumarasami, S.K. and 3 Ors. v. S.R. Somasundaram and 2 Ors. 1994 2 LW 646 ; Kasi

Viswanathan v. Manickam Chettiar 77 L.W.687 ; and Vembu Ammal Vs. Swaminathan and Others, , vehemently contended that the order of the

Court below is contrary to law and cannot be sustained, and that the Court below ought to have, according to the learned counsel, sustained the

objection and held that the Court fee on the plaint in question ought to have been paid u/s 37(1) of the Act and that, therefore, the suit cannot be

said to have been properly valued and stamped for the purpose of the court-fee.

I have gone through the plaint filed in the Court below, a copy of which is made available in the typed set of papers of this revision petition. The

plaintiff in the suit O.S. No. 231 of 1991 on the file of the Court below has merely sought for a preliminary decree for partition in favour of the

plaintiff (respondent herein) and for directing division of the suit properties into two halves and put the plaintiff in possession of her share of the suit

properties within the time stipulated by Court and in case of failure to do so by the first defendant, to pass a final decree by appointing a

Commissioner to divide the properties into moieties by metes and bounds and for convenient use and occupation and put the plaintiff in possession

of her share through process of Court. The plaint averments also go to show that this is a suit pure and simplicitor one for partition.

The submission of the learned counsel for the petitioners is that inasmuch as the respondent-plaintiff is not in possession of some of the items of

properties and that some items have already been alienated, the suit in so far as it relates to such items of properties atleast cannot be considered

to be one for mere partition so as to attract payment of court-fee u/s 37(2) of the Act. In C.R. Ramaswami Aiyangar, represented by his mother

and next friend Lakshmi Ammal Vs. C.S. Rangachariar and Others, a Full Bench of this Court had an occasion to consider the issue relating to the

nature of the suit for the purpose of payment of Court fee under the Court-fees Act, VII of 1890 (as amended in Madras). In my view, there is no

comparison of the nature of the suit considered by the Full Bench to the case on hand. That was a case where even the relief sought for as prayer

in the plaint was construed to involve setting aside of the earlier decrees passed to which the plaintiff had been an EO NOMINEE party. It was in

such circumstances, the Full Bench has held that the plaintiff therein must be held to have impliedly asked for the cancellation of the decrees passed

and therefore, must pay ad valorem court fee on the amount of the decree passed earlier. In Kasi Viswanathan''s case 77 LW. 687 (supra) as the

learned Judge then was, had an occasion to consider the scope of Section 37 of the Act in the context of the claim for Partition. As could be seen

even from the head note of the report, the relief sought for therein involved setting aside of an earlier partition and the legality and validity of such

earlier partition. The ratio of the said decision, therefore, will have no application to the case on hand.

In the case of Vembu Ammal Vs. Swaminathan and Others, , S. Swamikkannu, J. while considering the relevant scope of Sub- sections (1) and

(2) of Section 37 of the Act, decided the case before him in the context of the relief sought for which involved setting aside of a preliminary decree

passed in an earlier suit. In Kumarasami''s case 1994 2 LW 646 cited supra, Srinivasan, J. had an occasion to eleborately consider the scope of

Section 37(2) of the Act by reviewing the case law on the subject. No doubt the Learned Judge observed that the Courts have always to take

care to ensure that mere astuteness in drafting plaint does not stand in the way of Courts looking at the substance of the relief asked for and

looking into the allegations in the plaint to see what is the substantive relief that is asked for. The Learned Judge also observed after adverting to

the relevant case law on the subject that the question of Court-fee must be considered in the light of the allegations made in the plaint and the

decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. After stating so much on the

principles and on the facts and circumstances of the case before the learned Judge, it was held that the claim of the plantiff there in for payment of

Court-fee u/s 37(2) of the Act was not acceptable for the reason that the learned Judge found that the suit which was the subject matter of

consideration in the said case was in substance one for setting aside a compromise decree in an earlier suit in O.S. No. 37 of 1984, though the

prayer was only for declaration of the shares.

On a careful consideration of the submissions of the Learned Counsel for the petitioners in the light of the decisions relied on by her, I am of the

view that none of the decisions relied on for the petitioners before me, can be said to in any way help or support the plea on behalf of the

petitioners. As noticed supra, those cases were decided in the context of the peculiar nature of the relief claimed therein involving either the setting

aside of an earlier decree or earlier partition or compromise decree, unlike the case on hand, which is pure and simple, as pointed out earlier and

on looking into the averments in the plaint as also the nature of the relief sought for, one for partition. The order of the learned trial Judge in this

case rejecting the objection raised to the valuation of the suit given for the purposes of jurisdiction and Court-fee does not suffer, in my view, any

patent error of law or perversity of approach. Apart from the fact that the conclusion arrived at by the learned trial Judge is well merited on the

nature of the relief sought for in the plaint, the decision also does not involve any question of jurisdiction of the Court below to countenance the

claim of the petitioners at this stage of the proceedings.

For all the reasons stated above, the revision petition fails and shall stand dismissed. The conclusions rendered by the trial Court as well as by

this Court in this revision petition shall have no impact on the ultimate disposal of the claim made in the suit on merits.