Selvaraj and Others vs Kannan

N.V. Balasubramanian, J.—The Civil Revision petitioners are the plaintiffs and the respondent is the defendant. The plaintiffs filed the suit

O.S. 269 of 1991 on the file of the learned District Munsif, Polur, for declaration of their title over the suit properties and for the relief of

consequential injunction. The defendant, in the written statement has raised an objection that the suit properties, to be precise, items 5 to 7 were

not properly valued. The trial Judge after framing issues, examined the witnesses concluded the trial and heard the arguments of both sides and

posted the case for judgment on 12.3.1996, 26.3.1996 and again on 29.3.1996. On 29.3.1996, the learned trial Judge passed an order that the

trial was concluded on 28.2.1996 after the examination of the oral and documentary evidence and since it was felt that the question whether the

suit items 5 to 7 were properly valued or not cannot be decided without any evidence and hence, the trial Judge passed the impugned order to the

effect that to find out the real value of suit items 5 to 7 of the suit properties, they should be valued through the process of the Court. The trial

Judge, therefore, directed that the suit properties viz., items 5 to 7 of the suit properties should be valued through the process of court and a report

on the valuation of the suit properties should also be submitted. The plaintiff was directed to pay batta on or before 4.4.1996.

The revision petitioner has challenged the order on the ground that it is not open to the trial Judge to order for the valuation of the properties

through the process of the Court, after the evidence is recorded. According to him, u/s 12(2) of the Tamil Nadu Court Fees and Suits Valuation

Act, 1955 (hereinafter referred to as ""Court Fees Act""), the issue regarding the valuation of suit properties should have been tested before the

evidence is recorded and since, in the instant case, the Court has reserved judgment after the trial is concluded, it is not open to the Court to initiate

the proceedings u/s 12(2) of the Court Fees Act to determine the market value of the items 5 to 7 of the suit properties. The submission of the

learned counsel for the petitioner is that the Court should have issued a Commission under Order XXVI Rule 9 of the CPC for ascertaining the

correct market value of the suit properties and it is not open to the Court to resort to the provisions of Section 12(2) of the Court Fees Act.

Mr. Ashok Kumar, learned counsel for the respondent submitted that the petitioners cannot be said to be aggrieved by the impugned order of

the trial Judge as the Court has merely directed that the properties should be valued so that the correct amount of Court fees can be determined.

A reading of the Court Fees Act indicates that there are three stages at which the Court can determine the proper Court fee payable on a plaint,

the first stage is before ordering the plaint to be registered ; the second stage is where a defendant in his written statement filed before the first

hearing of the suit or before any evidence is recorded on the merits of the case, pleads that the subject matter of the suit was not properly valued

and the Court can, as a preliminary issue decide the question whether the suit property has been properly valued or not before the evidence is

recorded ; and the third stage is on the basis of an objection raised by the Court-fee Examiner u/s 18 of the Court Fees Act. On the facts of the

case, it is clear, it is neither a case falling under the first stage, i.e. Section 12(1) of the Court Fees Act, nor a case falling u/s 18 of the Court Fees

Act, where an objection is raised by a Court-fee Examiner. The trial Court, presumably exercised its power u/s 12(2) of the Act and directed that

items 5 to 7 of the suit properties should be valued through the process of the Court. The trial Judge has however over- looked that the powers u/s

12(2) of the Court Fees Act can be exercised only before the evidence is recorded affecting the merits of the case. It is seen, on the facts of the

case, the evidence has already been recorded and the case itself is posted for judgment. Hence, the power u/s 12(2) of the Court Fees Act is not

available to the trial Judge, because on the clear terms of Section 12(2) of the Court Fees Act, the power can be exercised only before the

evidence is recorded. There is also another reason for the non-availability of power u/s 12(2) of the Court Fees Act, because if after such a

direction, the Court comes to a conclusion that the subject matter of the suit was not properly valued, the Court should give an opportunity to the

plaintiff for the amendment of the plaint in accordance with the decision of the Court and for the payment of deficit Court fees also. If the plaintiff

does not carry out the amendment or does not pay the deficit court fee, the Court shall reject the plaint and it shall also order for the payment of

costs of the suit, if it deems necessary.

Section 12(2) of the Court Fees Act provides that the defendant should raise the objections questioning the valuation of the suit properties made

by the plaintiff before the evidence is taken, so that it may be possible for the trial Court to consider the question whether the suit property has

been properly valued or not and whether the court fees paid thereon is correct or not. The Court, under the provisions of Section 12(2) of the

Court Fees Act undertakes the exercise of ascertaining the value of the suit property to find out whether there was any deficit in the court fees paid

by the plaintiff and that process could also be completed before the commencement of the trail of the suit. In other words, Section 12(2) of the

Court Fees Act imposes a bar on the defendant to raise the question of valuation of the suit properties after the commencement of the trial of the

suit. From the nature of the provision, it is clear that Section 12(2) of the Court Fees Act is intended to operate against the defendant from

questioning the valuation of the suit property at a later stage after the commencement of the trial. The provisions of Section 12(2) of the Court Fees

Act also gives a clue that the power should be exercised before the evidence is recorded, as a failure of the plaintiff either to carry out the

amendment or to pay the deficit court fee would result in the rejection of the plaint. The object of the section is that after recording the entire

evidence in the case, if the Court holds an enquiry as regards the valuation of the suit property and if the plaintiff, on the basis of enhanced

valuation, does not carry out the plaint amendment or pay the deficit court fees, the entire exercise done by the Court in recording the evidence

would become futile and stultification of the evidence already recorded. It is only with these objects in view, Section 12(2) of the Court Fees Act

insists that the statutory power should be exercised by the Court before the evidence is recorded. Therefore, I hold that in the instant case, the trial

Judge has not exercised the powers u/s 12(2) of the Court Fees Act as she has exercised the power, in the instant case, after the evidence is

recorded.

Learned counsel for the respondent submitted that the trial Judge should have invoked the powers under Order XXVI Rule 9 of the Code of

Civil Procedure, that is the power to issue a commission to ascertain the market value of the property. I am not able to accept the contention of the

learned counsel for the respondent because the Court, evidently, the trial Judge has not invoked the powers under Order XXVI Rule 9 of the

Code as a Commissioner was not appointed in the order, which is the pre- requisite for the exercise of the powers under the said rule. As such,

since the Court has not invoked the powers under Order XXVI Rule 9 of the Code by appointing a Commissioner to ascertain the market value of

the property, it is not open to the respondent to rely upon the provisions of Order XXVI Rule 9 of the Code, to sustain the order of the trial Judge.

Though I have held that the trial Judge has not exercised the powers u/s 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. Consequently, C.M.P. 10876 of 1996 is dismissed.