R. Subbe Gowder vs Marakkal

R. Mala, J.—The Civil Revision Petition is filed against the fair and decreetal order dated 27.11.2013 made in I.A.No.1051 of 2013 in O.S.No.744 of 2011 on the file of the Principal Sub-Court, Coimbatore.

The respondents herein as the plaintiffs filed a suit in O.S.No.744 of 2011 for partition and separate possession of 4/5 shares in the suit property. The defendant filed the written statement and contested the suit. During examination of witnesses, the defendant has come forward with the application in I.A.No.1051 of 2013 for appointment of Advocate Commissioner under Order 26 Rule 9 of C.P.C. to ascertain the correct market value of the property. The trial Court, after hearing both sides, dismissed the application, against which, the present revision petition is preferred by the defendant.

Learned counsel for the revision petitioner/defendant submitted that at the time of filing the suit, the suit property has not been properly valued and it was under valued. The real value of the suit property is more than Rs.3 Crores and the plaintiff valued only at Rs.10,00,000/-. Therefore, he prayed for allowing of the revision petition. To substantiate his arguments, he relied upon the following decisions:

(i) Selvaraj and Others Vs. Kannan, ;

(ii) Saraswathy and Pulavar R. Palanisamy Chettiar Vs. Viswanathan, ;

(iii) Mangayarakarasi Ammal and 2 others Vs. Nagammal and 2 others, ;

Resisting the same, learned counsel for the respondents submitted that the suit has been filed by the sisters against their brother namely, Subbe Gowder, for partition and separate possession of their 4/5th shares in the suit property. The revision petitioner also filed another suit for declaration of title and injunction in O.S.No.578 of 2009. Thereafter, the defendant filed another application in I.A.No.666 of 2013 under Section 12 of Tamil Nadu Court Fees and Suits Valuation Act, to ascertain the market value of the property and that has been dismissed. Against which, the revision petitioner/defendant preferred a revision petition in C.R.P.(PD) No.3114 of 2013 and that has also been dismissed by this Court with a direction to dispose of the suit within three months from the date of receipt of a copy of that order. It is further submitted that after examination of the witnesses and the suit is posted for defendant''s side witness, the defendant has come forward with the present application in I.A.No.1051 of 2013 for appointment of Commissioner to ascertain the market value of the suit property. It shows that the defendant with malafide intention to delay for giving shares to his sisters, has come forward with the application. Therefore, he prayed for dismissal of the revision petition.

Considered the rival submissions made on both sides and perused the typed set of papers.

The respondents, who are sisters of the revision petitioner/defendant, filed a suit for partition and separate possession of their 4/5th shares in the suit property and in respect of three items of suit property, they valued the suit for Rs.10,00,000/- and paid Court fee as Rs.750/- under Section 37(2) of Court Fees and Suits Valuation Act. It is true, the revision petitioner in para-13 of his written statement, has made omni bus denial, which is stated as follows:

There is no cause of action for the suit. The alleged cause of action is false. The suit has not been properly valued for the purposes of Court fees and jurisdiction. The plaintiffs are not entitled to invoke Section 37(2) of the Tamil Nadu Court Fees and Suits Valuation Act. The plaintiffs are not in joint possession. Even in the plaint the address given to the defendant is the suit property address. In the plaint the addresses given to the plaintiffs are situated in faraway places. Therefore it is very clear that the defendant alone is in exclusive possession and enjoyment of the suit property. The plaintiffs are bound to pay court fees under Section 37(1) of the Tamil Nadu Court Fees and Suits Valuation Act. The suit property has been grossly undervalued by the plaintiffs. They are bound to pay proper court fees on the correct market value of the suit property.

In the above para, the defendant has not stated that as to what is the real market value of the suit property.

It is admitted by both sides that the defendant filed an application in I.A.No.666 of 2013 under Section 12 of Tamil Nadu Court Fees and Suits Valuation Act, for deciding the value of the suit property as preliminary issue. The trial Court has dismissed the application, against which, the defendant preferred the revision in C.R.P.(PD) No.3114 of 2013. This Court, by an order dated 17.04.2014, dismissed the same stating that during pendency of the suit that too at the part-heard stage, the defendant came forward with the application only with a view to drag on the proceedings and it has to be construed that it is an abuse of process of Court.

In the second round of litigation, after examination of witnesses, the defendant/revision petitioner has filed an application in I.A.No.1051 of 2013 for appointment of Advocate Commissioner to ascertain the market value of the property. The trial Court, after hearing both sides, dismissed the application, against which, the present revision petition is preferred by the revision petitioner/defendant.

At this juncture, it is appropriate to consider the following decisions of this Court relied upon by the learned counsel for the revision petitioner.

(i) In Selvaraj and Others Vs. Kannan, , it was held as follows:

Though I have held that the trial Judge has not exercised the powers under Section 12(2) of the Court Fees Act or under Order XXVI, Rule 9 of the Code; still I am of the view that the trial Judge has exercised the powers of the Court which are inherent in deciding the issue whether the items 5 to 7 of the suit properties were properly valued or not, and whether the Court fees paid by the plaintiff was correct or not. It is only with a view to answer the issue as regards the correctness of the Court fees paid, the trial Court, in my view, should have directed that the items 5 to 7 of the suit properties should be valued through the process of the Court. Since the Court has the wide powers to render its answer to the issue raised by collecting materials or evidence, I am of the view, the order is sustainable on the larger powers of the Court to decide the issue as effectively as it can. Hence, I do not find any infirmity in the order of the trial Judge in directing the valuation of the items 5 to 7 of the suit properties through the process of the Court. Since the Court has the necessary power, independent of the evidence adduced by the parties to find out the market value of the suit property and to determine the proper court fee payable, I do not find any infirmity in the order of the trial Judge in directing the valuation of items 5 to 7 of the suit properties through the process of the Court. It is however, made clear that the valuation so directed to be done by the trial Judge should be done by an Officer holding a higher rank than that of a Court Amin so that the report of the valuation that may be furnished by such an authority may be reliable and useful to the Court. In this view of the matter, I dismiss the Civil Revision Petition, but without no order as to costs. Since the time granted by the trial Judge to the Civil revision petitioner to pay the necessary batta has already expired, the time for payment of necessary batta is extended for a further period of three weeks from this date....

There is no quarrel over the above proposition. But the above citation is not applicable to the facts of the present case, because wherein it was held that the suit was filed for declaration of title and consequential injunction. But the defendant therein has raised objections that Item Nos.5 to 7 of the suit properties are not properly valued. But he has not let in any oral and documentary evidence and so the trial Court passed the impugned order to the effect that to find out the real value of the suit items 5 to 7 of the suit properties and they should be valued through process of the Court and that has been agitated by one of the parties in the suit. This Court has also confirmed the order passed by the trial Court stating that the trial Court has every right to value the property through process of the Court.

(ii) In Saraswathy and Pulavar R. Palanisamy Chettiar Vs. Viswanathan, , it is held as follows:

In Pillaiyar Vs. Ganesan and another, I had occasion to consider the grounds for invoking Order 26 Rule 9 of the Code of Civil Procedure for the appointment of an Advocate Commissioner. No doubt, there can be no appointment of Commissioner for collecting evidence or gathering materials. However, the object of a Commission under Order 26 Rule 9 of the Code of Civil Procedure is not to collect evidence, which has to be done only by the Court, but for elucidating matters which are local in character, which can be done only by local investigation at the spot.

In my view, a local investigation is requisite and proper and the lower Court was in error in declining to appoint an Advocate Commissioner. Absolutely no prejudice would be caused by the appointment of an Advocate Commissioner.

In the above citation, it was held that no Commissioner can be appointed for collecting evidence or gathering materials. In the case on hand, according to the learned counsel for the revision petitioner, to ascertain the market value of the property, Commissioner has to be appointed. As per the dictum of the Apex Court and also the provisions under Order 26 Rule 9 of C.P.C., no commissioner can be appointed to collect the material evidence. So the above citation is not applicable to the facts of the present case.

(iii) In Mangayarakarasi Ammal and 2 others Vs. Nagammal and 2 others, , it is held as follows:

Order 26, Rule 9 of CPC enables the court to issue commission for local investigation amongst others for ascertaining the market value of any property or the amount of any mesne profits or damages or annual net profits. The Rule 10 of Order 26 of CPC provides for procedure of commission and in this process, the Commissioner may examine any person as a witness. The Commissioner when he submits his report, both the parties can let in contra evidence and demonstrate before the court that the opinion given by the Commissioner is wrong for one reason or the other with regard to the market value of the property.

There is no quarrel over the above proposition. But the above citation is not applicable to the facts of the present case. Because in the above case, learned Judge has discussed what are the procedures under Order 26 of C.P.C. for appointment of Commissioner.

Now this Court has to decide as to whether the defendant is entitled to file an application for appointment of Commissioner to ascertain the market value of the suit property. Even though he has not specifically denied and given real value of the suit property, whereas in his written statement in para-13, he has stated that suit property has been grossly undervalued by the plaintiffs and they are bound to pay proper court fees on the correct market value of the suit property. Under such circumstances, once I.A.No.666 of 2013 has been dismissed, the defendant may very well let in both oral and documentary evidence pertaining to the adjacent land to prove the market value. But the defendant without doing so, after closing of both sides'' evidence, has come forward with the application with malafide intention only to drag on the proceedings and not to give shares to his own sisters.

According to the learned counsel for the respondents, plaintiffs'' side arguments were over and the suit was posted on 26.06.2014 for defendant''s side arguments.

Considering the facts and circumstances of the case, I am of the view, the defendant/revision petitioner has come forward with the application, only to drag on the proceedings and not to give shares to his sisters. So the impugned order passed by the trial Court does not warrant any interference. Furthermore, with a view to facilitate the Court, the trial Court has every right to frame additional issue in respect of value of the suit property. So this revision petition is dismissed as devoid of merits.

In the result, the Civil Revision Petition is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed.