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Subhadramma Vs. Palaksha Reddy and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 1307 of 1973
Judge
Reported inAIR1975AP165
ActsCode of Civil Procedure (CPC), 1908 - Sections 115; Andhra Pradesh Court-Fees and Suits Valuation Act, 1956 - Sections 11(2) and 11(4)
AppellantSubhadramma
RespondentPalaksha Reddy and ors.
Advocates:N. Ramamohan Rao, Adv.
DispositionRevision petition dismissed
Excerpt:
.....under section 115. (ii) procedure - sections 11 (2) and 11 (4) of andhra pradesh court fees and suits valuation act, 1956 - value of suit for determination of jurisdiction of court and decision whether court fee had sufficiently been paid should be heard before hearing of suit or before actual trial of suit - held, revision application not maintainable as it did not involve question of jurisdiction of court to try suit. - - 616 (fb) it was clearly laid down by this court that the investigation contemplated under sections 11(2) and 11(4) of the court-fees act must not encroach upon the principal issue to be decided in the suit. it is not the case of the petitioner that she wanted to adduce some more evidence like examining witnesses etc. therefore, it is not possible to..........no. 6. the second defendant filed a written statement taking a plea that some of the items of the suit property are her stridhana properties and she has been in exclusive possession and enjoyment of the same.2. section 34 of the court-fees act relates to partition suits. it is provided under sub-section (1) of section 34 that in a suit for partition and separatepossession of a share of joint family property or of property owned jointly, by a plaintiff who has been excluded from possession of such property, fee shall be computed ad valorem on the market value if it is movable property or 3/4ths of the market value if it is immovable property on the plaintiffs share. as per sub-section (2) of section 34 if the plaintiff is in joint possession of the joint family or property owned jointly,.....
Judgment:
ORDER

Ramachandra Raju, J.

1. This revision petition is filed by the 2nd defendant against the finding given by the court of Subordinate Judge, Adoni, in O. S. No. 27 of 1972 on application filed by her to try the issue framed in the suit on the question of court-fee. Whether the court fee paid by the plaintiffs is not correct as a preliminary issue, that the court fee already paid by the plaintiffs valuing the suit properties under Section 34(2) of the Andhra Pradesh Court-Fees and Suits Valuation Act, 1956 (hereinafter referred to as 'the Court-Fees Act') is proper. The suit was filed for partition of joint family properties by two minor plaintiffs against their paternal grand-father defendant No. 1, paternal grand-mother defendant No. 2 paternal uncle defendant No. 3, the sister of the plaintiffs, defendant No. 4, their mother defendant No. 5 and the widow of the late brother of the plaintiffs, defendant No. 6. The second defendant filed a written statement taking a plea that some of the items of the suit property are her Stridhana properties and she has been in exclusive possession and enjoyment of the same.

2. Section 34 of the Court-Fees Act relates to partition suits. It is provided under Sub-section (1) of Section 34 that in a suit for partition and separatepossession of a share of joint family property or of property owned jointly, by a plaintiff who has been excluded from possession of such property, fee shall be computed ad valorem on the market value if it is movable property or 3/4ths of the market value if it is immovable property on the plaintiffs share. As per Sub-section (2) of Section 34 if the plaintiff is in joint possession of the joint family or property owned jointly, fixed court-fee is provided, the maximum being Rs. 200/- if the value of the plaintiff's share is not less than Rs. 10,000/-. On the basis that the plaintiffs are in joint possession of the entire suit property the suit was valued as provided under Section 34(2) of Court-fees Act and a fixed Court-fee of Rs 200/- was paid. The 2nd defendant took a plea that so far as the suit properties which are in her exclusive possession and enjoyment are concerned, the plaintiffs have to pay court-fee as provided under Section 34(1) of the Court-fees Act. On the plea taken by the 2nd defendant that some of the items are her self acquired properties and she has been in exclusive possession and enjoyment of the same, an issue as to whether the fixed court-fee paid by the plaintiffs on the plaint is not correct was framed by the lower court. It is on this issue framed on the plea taken by the 2nd defendant, the lower court save the finding that the court-fee paid by the plaintiffs is proper. In giving that finding, the lower court took into consideration the fact that the 1st defendant who is the husband of the 2nd defendant was in management of the family properties, the contention made on behalf of the plaintiffs that being in management of the family the 1st defendant took some sale deeds in favour of his wife, the 2nd defendant though they were purchased with the joint family funds and also the claim of the 2nd defendant that the lease deeds end tax receipts for those items of property are in her name and she has been in possession and enjoyment of the same.

3. Sri N. Ramamohan Rao, the learned counsel for the petitioner, has argued that the lower Court has committed an error of jurisdiction within the meaning of Section 115 of the Code of Civil Procedure in deciding the preliminary issue without following the procedure laid down in Section 11 (2) and (4) of the Court-Fees Act. It is provided therein that any defendant may plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient and all questions on such pleas shall be heard and decided before the hearing of the suit as contemplated by Order 18 in the First Schedule to the Code of Civil Procedure. Under Order 18 C. P. C. procedure is laid downwith regard to hearing of suits and examination of witnesses. What all is mentioned in Sub-sections (2) and (4) of Section 11 is that the questions relating to the value, for the purpose of determining the jurisdiction of court and to find out whether the fee paid by the plaintiff is sufficient or not, should be heard and decided before hearing of the suits as provided under Order 18, C. P. C. which means before the actual trial of the suit. The argument of the learned counsel is that what is laid down under Sub-sections (2) and (4) of Section 11 of the Court-fees Act is that, the questions relating to the value of suits for the purpose of determining the jurisdiction of Court and the fee payable on the plaint should be heard and decided after following the procedure as laid down under Order 18 C. P. C. i. e. they should be hoard and decided in the same manner as trying a suit. I do not think the learned counsel is correct in putting such an interpretation on the language used in Sub-sections (2) and (4) of Section 11 of the Court-fees Act. The words 'as contemplated by Order 18 in the First Schedule to the Code of Civil Procedure' in both the sub-sections are in relation to hearing of suit mentioned therein and not in relation to hearing of the questions relating to the proper valuation of the suit or court-fee paid on it. With regard to hearing and deciding the questions relating to proper valuation of suits and court-fee paid in suits, provision is made under Section 17 of the Court Fees Act for enquiry. It is provided therein that for the purpose of deciding whether the subject-matter of a suit or other proceeding has been properly valued or whether the fee paid is sufficient, the court may hold such inquiry as it considers necessary and may, if it thinks fit, issue a commission to any person directing him to make such local or other investigation as may be necessary and to report thereon to the Court. In the Full Bench case C. C. Reddy v. K. C. Reddy, (1968) 2 Andh. W. R. 616 (FB) it was clearly laid down by this court that the investigation contemplated under Sections 11(2) and 11(4) of the Court-fees Act must not encroach upon the principal issue to be decided in the suit. It was observed therein that the investigation extends to all materials furnished by the plaintiff, all admissions wherever and whenever made by the plaintiff including admissions made in interlocutory matters in the suit all documents produced by the plaintiff or to which a reference is made in the plaint, all undisputed facts brought to the court's notice by the defendant, and all other facts which may be established without going into the main controversy between the parties. It was further observed that it is not possible or desirable to furtherdefine the scope of the investigation, but suffice it to say that the investigation must not encroach upon the principal issue to be decided before the trial begins within the meaning of Order 18 as enjoined in Section 11(2) and 11 (4) of the Court-fees Act. Therefore it is clear that the interpretation sought to be put by the learned Counsel is not warranted.

4. In making the order under revision, the lower Court did not merely take into consideration the allegations made in the plaint as contended by the learned Counsel. It also took into consideration the contention of the petitioner that the sale deeds, lease deeds and tax receipts for the items in question stand in her name. The lower court decided the matter after hearing both the parties. It is not the case of the petitioner that she wanted to adduce some more evidence like examining witnesses etc., and she was not allowed to do so. Therefore, it is not possible to say, as argued by the learned Counsel, that in passing the order under revision the lower Court has either failed to exercise the jurisdiction vested in it or has acted in exercise of its jurisdiction illegally or with material irregularity as contemplated under Section 115 (b) and (c) of the Code of Civil Procedure.

5. Sri Rama Mohan Rao has also argued that the lower Court should not have decided the preliminary issue in the application itself and instead it should have decided in the application only whether the issue relating to the court-fee is to be tried as preliminary issue or not, for deciding which only the application was filed. I am unable to understand this argument. The application was filed to try the issue relating to the sufficiency of court-fee paid as a preliminary issue before hearing the suit. By granting that request of the petitioner, the lower Court proceeded to decide the preliminary issue and passed orders in the same application deciding that issue. I do not find anything wrong in it.

6. Sri Rama Mohan Rao has cited two decisions, Ram Chand and Sons Sugar Mills v. Kanhayalal, : [1966]3SCR856 and Kerala State Electricity Board v. Ulahannan Markose, (1969) 1 SCWR 645, which, according to him, support his contention that the lower Court has committed an error of jurisdiction in passing the order under revision. The case : [1966]3SCR856 dealt with Section 151 and Order 29. Rules 1 and 3, Civil Procedure Code with regard to the scope of inherent power of a court. It has no bearing on the point with which we are now concerned in the present case. In the decision (1969) 1 SCWR 645 the Supreme Court by coming to the conclusion thatthe District Judge dismissed the application of the respondent on an erroneous construction of Section 10(d) of the Telegraph Act held that in so doing the District Judge refused to exercise the jurisdiction vested in him because of the erroneous construction placed upon the language of Section 10(d) of the Telegraph Act and the case therefore will fall within Sub-section (a) or Sub-section (b) of Section 115. C. P. C. and therefore the High Court was competent to interfere with the order of the District Judge and set it aside. In the present case there is no erroneous construction of any provision of law or refusal to exercise jurisdiction.

7. In this connection it is pertinent to make mention of what was observed by the Supreme Court in the decision Rathnavarmaraja v. Vimala : [1961]3SCR1015 while dealing with a case of revision which had arisen out of an order passed under Section 12 (2) of the Madras High Court Fees and Suits Valuation Act, 1955, which is in pari materia with Section 11(2) of the Court-fees Act. In the Madras Act there is a similar provision in Section 19 like the one contained in Section 17 of the present Court-fees Act with regard to the inquiry to be made by the court into the questions relating to whether the subject-matter of a suit or other proceeding has been properly valued or whether the fee paid is sufficient. The Supreme Court observed that:

'The Court-fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. ............... We fail toappreciate what grievance the defendant can make by seeking to invoke the revisional jurisdiction of the High Court on the question whether the plaintiff has paid adequate court-fee on his plaint. Whether proper court-fee is paid on a plaint is primarily a question between the plaintiff and the State. How by an order relating to the adequacy of the court-fee paid by the plaintiff, the defendant may feel aggrieved it is difficult to appreciate.'

8. In the decision Muthu Naicken v. Mariappae Pillai, : AIR1953Mad754 . P. V. Raiamannar, C. J.. who decided that case, said that the High Court may interfere with an order relating to court-fee and jurisdiction even though the decisions, on these questions, of the lower Court are in favour of the plaintiff; but if the question related entirely to court-fee and did not invoke any question of jurisdiction, the High Court will not interfere at the instance of the defendant.

9. In the Full Bench case Murthiraju v. Subbaraju, (1944) 1 Mad LJ 328 = (AIR 1944 Mad 315) (FB) it was held by the Madras High Court that a revision petition lies when a court Subordinate to the High Court has held that the plaintiff has inadequately stamped his plaint but a revision does not lie when a defendant has unsuccessfully challenged the adequacy of the stamp affixed by the plaintiff, unless a further question of jurisdiction is involved. Here 'jurisdiction' means jurisdiction of a court to try a suit.

10. Sri Rama Mohan Rao has contended that the decisions of the Madras High Court referred to above were rendered under the old Madras Court-fees Act and the, present Court-fees Act is different. So far as the application of the principle is concerned there cannot be any difference between the old and the new Acts. There is no provision in the present Court-fees Act from which it can be said that that principle cannot have any application to cases which arise thereunder.

11. I should think therefore that the High Court should not entertain revision applications on question of court-fee at the instance of a defendant when no question of jurisdiction of the court to try the suit is involved. Accordingly the civil revision petition fails and it is dismissed. NO costs.


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