Saroja Ammal vs Duraisamy and 10 others

The petitioner in this civil revision petition is the plaintiff in unnumbered O.S.SR.No. 111 of 1997 on the file of the learned District Munsif cum

Judicial Magistrate, Tirukazhukundram. The petitioner filed the above suit for a preliminary decree of partition of the suit properties into nine shares

and allot one share to the plaintiff according to metes and bounds and considering good and bad soil and for other reliefs. The plaintiff for the

purpose of Court fee, valued the suit at Rs.20,555.55 and paid the court fee of Rs. 200/- u/s 37(2) of the Tamil Nadu Court Fees and Suits

Valuation Act. The said plaint was rejected by the learned District Munsif cum Judicial Magistrate by order dated 23.7.97 on the ground that the

petitioner should pay the Court fee u/s 37(1) of the Act instead of Section 37(2). Having so found, the learned Judge granted seven days time to

the petitioner to pay the deficit Court fee. Aggrieved by the said order, the present civil revision petition has been filed.

Mr. V. Raghavachari, learned counsel for the petitioner submitted that the order of the learned District Munsif in directing the petitioner/plaintiff

to pay Court fee u/s 37(1) of the Act instead of accepting the plaint on the basis of the valuation and court fee paid by the petitioner/plaintiff u/s

37(2) of the Act is not correct. The learned counsel submitted that the reason adduced by the learned District Munsif for directing the

petitioner/plaintiff to pay the court fee u/s 37(1) of the Act is unsustainable since it is the specific case of the plaintiff in paragraph 7 of the plaint that

she is and deemed to be in joint possession of the suit items and the said averment has to be decided only after the trial and the plaint itself cannot

be rejected on the ground that the averments in the plaint do not reflect the joint possession being pleaded by the plaintiff.

In the order under revision, the learned District Munsif relied upon the averments made in paragraph 3 of the plaint wherein the plaintiff has

stated that the plaintiff resided at item no.1 of the suit property till her marriage. The learned Judge has also taken note that thereafter the plaintiff is

living with her husband and she was getting the income from the suit property up to the year 1993 and thereafter she has not received any income

from the suit property. Therefore, the learned District Munsif found that on the date the suit was filed, the plaintiff was not in possession and

accordingly the learned Judge directed the plaintiff to pay the Court fee u/s 37(1) of the Act.

The reason adduced by the learned District Munsif that the plaintiff was not in possession of the suit property on the date of filing of the suit

cannot be decided even before the suit is taken on file and by an administrative direction on the basis of the averments made in the plaint. The

learned Judge ought to have entertained the suit and given an opportunity to the plaintiff to sustain the claim that the plaintiff was in joint possession

of the suit property and thereafter only ought to have come to the conclusion on the basis of such materials available either to proceed with the suit

on the basis of the Court fee paid u/s 37(2) or directing the plaintiff to pay the Court fee u/s 37(1) within the period given by the learned Judge. In

fact, this Court in a judgment reported in Ramaiah Thevar v. Shanmugavel Thevar and others, 1979 MLJ 142 while considering a similar question

has held that it becomes incumbent for the Court at the full-fledged trial of the suit, to consider the question as to whether there has been an actual

ouster as pleaded by the defendants. If after the full-fledged trial, the Court comes to the conclusion that the plaintiffs case of joint possession in the

plaint is not borne out by the evidence the course to be adopted is to dismiss the suit of the plaintiff, unless he amends the plaint suitably and pays

the requisite court fees u/s 37(1) of the Act. The Court also held that in such matters, it is not safe and advisable to decide the issue on a

consideration of the pleadings alone without proper and sufficient materials pleaded before the Court. Therefore, in my considered view the

learned Judge ought to have entertained the suit and ought to have decided the question of the sustainability on the basis of the court fee paid u/s

37(2) of the Act. I do not agree with the reasons given by the learned District Munsif cum Judicial Magistrate in directing the petitioner/plaintiff to

pay the Court fee u/s 37(1) even before the same is taken on file and without giving any opportunity to the plaintiff to adduce his evidence to

establish her joint possession.

In that view of the matter, this civil revision petition is allowed with a direction to the learned District Munsif to take the unnumbered

O.S.SR.No. 111 of 1997 on file and decide the question of payment of court fee as either u/s 37(1) or Section 37(2) after giving an opportunity to

the petitioner/plaintiff by way of letting in evidence in the suit. With the above direction, this civil revision petition is allowed. No costs.