V.S. Jagadeesan vs Madar Saheb, Sankar and Paramathma, Secretary, Tamil Nadu Primary Agricultural Bank Staffs Society Ltd. <BR>Madar Saheb and Paramathma, Secretary, Tamil Nadu Primary Agricultural Bank Staffs Society Ltd. Vs Sankar and V.S. Jagadeesan

S. Sardar Zackria Hussain, J.—The second defendant in O.S. No. 127 of 2001 on the file of the District Munsif Court, Cuddalore is the

revision petitioner. The revision is filed challenging the order dated 8.4.2004, dismissing the petition I.A. No. 272 of 2004 filed under Order XIV

Rule 2(ii) read with Section 151 C.P.C. to try the issue with regard to pecuniary jurisdiction as preliminary issue.

The first respondent/plaintiff filed the suit for declaration of title to the suit properties and for possession; for declaration that the power of

attorney deed dated 21.1.1999 obtained by the first defendant by fraud and misrepresentation is not binding on the plaintiff and also for declaration

that the sale deeds dated 27.1.1997, 29.1.1997 and 16.9.1999 executed by the first defendant in favour of the defendants 2 and 3 under the

invalid power of attorney deed are null and void and not binding on the plaintiff.

The plaintiff claims title to the suit properties as grant made by the Tamil Nadu Government on 23.1.1973 and the plaintiff has been in enjoyment

of the suit properties by paying tax till 1988. The patta was cancelled by the Government on 25.5.1989 and challenging the same Writ Petition in

W.P. No. 12999 of 1989 was filed, in which the plaintiff was directed to exhaust his remedies before the Revenue Officials. The plaintiff preferred

revision in the Revenue Department, in which also he was not successful and ended against him on 5.2.1992. The plaintiff filed another Writ

Petition in W.P. No. 13019 of 1992 and as per order dated 8.1.1999, the title of the plaintiff in the suit properties has been confirmed, directing

the Revenue Officials to conduct an enquiry and accordingly after enquiry, the patta for the properties were cancelled. Again the plaintiff filed Writ

Petition in W.P. No. 22727 of 2000 and got stay against the order of the Revenue Department on 15.9.2000. Since the plaintiff fell sick, he gave

the Power of Attorney to the first defendant on 21.1.1997 to look after the properties. By misusing the same, the first defendant sold the

properties to the defendants 2 and 3 and therefore, challenging the said sale deeds executed by the first defendant in favour of the defendants 2

and 3 and seeking the above stated reliefs, the suit was filed.

The revision petitioner/second defendant filed the written statement and resisted the suit. The second defendant filed I.A. No. 272 of 2004 that

the suit is not properly valued for the purpose of Court fees and jurisdiction and so this issue is to be tried as preliminary issue. Further it is stated

that for the relief to set aside the sale deeds, it is to be valued u/s 40 of the Court Fees Act and not u/s 25(a) of the Court Fees Act and so the

plaintiff is to value the suit as per the value stated in the documents, which comes to Rs.6,00,000/- and the valuation of the suit property at 30

times of kist is not correct and if the suit is properly valued, the District Munsif Court will not have pecuniary jurisdiction to try the suit.

The plaintiff opposed the petition in the counter by stating that no prayer is sought to set aside the sale deeds dated 27.1.1997, 29.1.1997 and

16.9.1999 and as such, the Court fees paid valuing the suit u/s 25(a)of the Court Fees Act being proper, the said Court has got pecuniary

jurisdiction to try the suit. Further, it is also stated in the counter that the value mentioned in the documents which comes to Rs.6,00,000/- cannot

be adopted for the purpose of payment of Court Fees.

The trial Court in not accepting the case of the revision petitioner/second defendant and finding that already trial of the suit was commenced and

such issue has been raised in the additional written statement and accordingly additional issue has been framed as to whether the Court fees paid is

correct and since that can be gone into only at the time of the trial of the suit, there is no necessity to try the issue as a preliminary issue and

accordingly dismissed the said petition. The order is challenged in this revision.

Heard the learned counsel for the revision petitioner and the learned counsel for the respondents.

The learned counsel for the revision petitioner/second defendant vehemently contended that inasmuch as the plaintiff/first respondent has

challenged the sale deeds dated 27.1.1997, 29.1.1997 and 16.9.1999 in favour of the defendants 2 and 3 executed by the first defendant on the

strength of the power of attorney executed by the plaintiff in his favour as null and void and not binding on the plaintiff and seeks to set aside the

said sale deeds, the Court fee is payable only u/s 40 of the Court Fees and Suit Valuation Act and not u/s 25(a) of the Court Fees and Suit

Valuation Act and as such the valuation of the suit property at 30 times of kist is not correct and if the suit is valued properly with reference to the

value mentioned in the sale deeds dated 27.1.1997, 29.1.1997 and 16.9.1999 which comes to Rs.6,00,000/-, then the said District Munsif Court

will not have pecuniary jurisdiction to try the suit. In support of such contention, the learned counsel for the revision petitioner/second defendant

relied on the decision of this Court in Solaiammal (died) and Another Vs. Rajarathinam and Others, , in which this Court has held that pecuniary

jurisdiction can be tried as preliminary issue when valuation of the suit is apparent on the face of plaint averments and no further recording of

evidence is to be required. But, where factual enquiry about the market value of the suit property is to be made, it cannot be tried as preliminary

issue.

The learned counsel for the first respondent/plaintiff submitted that inasmuch as the plaintiff has not prayed to set aside the sale deeds

27.1.1997, 29.1.1997 and 16.9.1999 executed by the first defendant/second respondent in favour of the defendants 2 and 3 and since it is only

stated in the plaint that since the above sale deeds have been executed by the first defendant to the defendants 2 and 3 on the strength of the

Power of Attorney executed by the plaintiff to look after the suit properties and as such, sought the relief to declare the said sale deeds as null and

void and not binding on the plaintiff and therefore, according to the learned counsel for the first respondent/plaintiff, the valuation made u/s 25(a) of

the Court Fees and Suit Valuation Act is correct. The learned counsel also contended that inasmuch as the trial of the suit has already commenced

and evidence recorded, the petition, subject matter of this revision, filed to try issue with regard to the pecuniary jurisdiction as preliminary issue,

cannot be allowed to decide the issue as preliminary issue. In support of such contention, the learned counsel for the first respondent/plaintiff relied

on the following decisions:-

(1) Major Ramachandran and another Vs. Mrs. Rema Jayarajan, rep by power agent, , in which, this Court held that the belated application filed

after commencement of trial cannot be entertained and the preliminary issue had to be decided on the basis of pleadings, documents and oral

evidence along with other issues as well.

(2) Laljivora v. Srividya reported in 2001(2) C.T.C. 411, in which, this Court held that the issue relating to valuation of Court fees does not fall

under Order 14, Rule 2 C.P.C.

(3) A. Manivannan and 2 Ors. v. - Sivaraj and 6 Ors. reported in 2001 (4) C.T.C. 2, in which, this Court held that Order 14 Rule 2 C.P.C. gives

Court power to deal with issues of pure question of law as preliminary issues and after 1976 amendment of Civil Procedure Code, Court is

directed to decide all issues after trial.

The learned counsel for the third respondent relied on the decision in Sundarrajan and Ors. v. Vellai Vinayagar Koil and Ors. reported in AIR

2001 Mad 110, in which, this Court held that the revision petitioner cannot invoke revisional jurisdiction of the High Court on question whether the

plaintiff has paid adequate court fee on the plaint or not. It is also held that the valuation of ryotwari land at 30 times survey assessment is not open

to objection.

The suit was filed on 15.3.2001 and the second defendant filed the written statement on 30.11.2001 and the trial of the suit was commenced

and only thereafter, the second defendant has filed I.A. No. 272 of 2004, subject matter of this revision to try the issue regarding pecuniary

jurisdiction of the Court as preliminary issue by stating that the Court fee is payable only u/s 40 of the Court Fees and Suit Valuation Act and the

valuation of the suit u/s 25(a) of the Court Fees and Suit Valuation Act is incorrect, in that the plaintiff seeks to set aside the sale deeds dated

27.1.1997, 29.1.1997 and 16.9.1999.

As rightly submitted by the learned counsel for the first respondent/plaintiff, the trial of the suit was already commenced and the issue relating to

the valuation of the Court fees does not fall under Order 14 rule 2 C.P.C. Further, the plaintiff only seeks that the sale deeds dated 27.1.1997,

29.1.1997 and 16.9.1999 executed by the first defendant in favour of the defendants 2 and 3 under the invalid power of attorney deed, are null

and void and not binding on the plaintiff and no prayer is sought to set aside the sale deeds and only in which case, the Court fee payable is on the

value of the suit property u/s 40 of the Court Fees and Suit Valuation Act. Therefore, there is no force in the argument advanced for the revision

petitioner/second defendant that the Court fees paid is incorrect and that the suit is to be valued u/s 40 of the Court Fees and Suit Valuation Act,

taking into consideration, the valuation of the suit property is to the tune of Rs.6,00,000/- as mentioned in the sale deeds. In that view, the decision

relied on by the learned counsel for the revision petitioner/second defendant reported in Solaiammal (died) and Another Vs. Rajarathinam and

Others, is not applicable to the facts of the case.

The suit property being a landed property, the suit valuation on the basis of 30 times of kist and u/s 25(a) of the Court Fees and Suit Valuation

Act has been correctly made and there is no need for the first respondent/plaintiff to pay Court fees u/s 40 of the Court Fees and Suit Valuation

Act, since no declaration is sought to set aside the sale deeds dated 27.1.1997, 29.1.1997 and 16.9.1999 executed by the first defendant in

favour of the defendants 2 and 3 on the strength of the power of attorney executed by the plaintiff. The trial Court, considering all these aspects has

dismissed the petition and there is no reason to interfere with such order.

In the result, the Civil Revision Petition fails and the same is dismissed, confirming the order dated 8.4.2004 in I.A. No. 272 of 2004 in O.S.

No. 127 of 2001 passed by the District Munsif, Cuddalore. No costs.