Madras High Court

S.Satheez vs A.Muthuvelu on 10 March, 2021

                                                               CRP.PD.No.472 of 2017

            IN THE HIGH COURT OF JUDICATURE AT MADRAS

                             DATED: 10.03.2021

                                  CORAM

       THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN

                          C.R.P(PD)No.472 of 2017


S.Satheez                                                       ... Petitioner

                                      Vs.


Nagamanickam (died)

1.A.Muthuvelu

2.A.Karunakaran

3.A.Elangovan

4.P.Kowsalya

5.K.Muthusamy

6.K.M.Muruganantham

7.M.Sivakami

8.K.M.Madheswaran                                               ... Respondents

Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of
India to set aside the judgment and decree dated 03.12.2016 made in
C.M.A.No.31 of 2015 on the file of the learned First Additional District Court,

1/10
                                                               CRP.PD.No.472 of 2017

Erode confirming the judgment and decree dated 23.03.2015 made in
O.S.No.623 of 1999 on the file of the learned Principal Sub Court, Erode.


             For Petitioner     : Mr.N.Manokaran
             For Respondents : Mr.S.Kaithamalai Kumaran [for R5 to R8]
                               Not ready in notice [for R1 to R4]
                                  *****
                                ORDER

The Civil Revision Petition is filed against the judgment and decree

dated 03.12.2016 passed in C.M.A.No.31 of 2015 on the file of the learned

First Additional District Court, Erode, confirming the judgment and decree

dated 23.03.2015 made in O.S.No.623 of 1999 on the file of the learned

Principal Sub Court, Erode, thereby rejected the plaint under Order 7 Rule 10

CPC for the reason that the suit property exceeds the pecuniary jurisdiction of

the trial Court.

2. The petitioner is the plaintiff and the respondents are the defendants

in the suit filed by the petitioner for declaration and recovery of possession in

respect of suit property. Though the petitioner filed a suit for declaration in

respect of the property admeasuring 4543 sq.ft, subsequently it was amended as

per the order in I.A.No.422 of 2007 dated 23.07.2007 and reduced to an extent

to 1674 sq.ft.

CRP.PD.No.472 of 2017

3. Learned counsel for the petitioner would submit that the market value

of the property covered under the sale deed dated 23.09.1988 is Rs.14,49,500/-

for the total extent of the property measuring 4543 sq.ft. Subsequently, it was

amended and reduced to an extent of 1674 sq.ft. and the proportionate value of

the suit property comes to Rs.5,34,100/- and as such, it is well within the

pecuniary jurisdiction of the trial Court. In support of his contention, he relied

upon the judgment reported in 2014 (2) CTC 256 [D.Nagaraj Vs. A.Devaraj].

4. On perusal of plaint, it is seen that initially the petitioner filed suit for

the entire suit property admeasuring 4543 sq.ft and valued the suit and paid the

Court fee. Subsequently, the petitioner filed a petition for amendment in

I.A.No.422 of 2007 and the trial Court allowed the same and amended the

plaint thereby reducing the extent of the suit property to 1674 sq.ft., by an order

dated 23.07.2007. Accordingly the petitioner valued the suit property at

Rs.5,00,000/- and paid a sum of Rs.37,550/-as Court fee. The Court below

rejected the plaint on the ground that the suit was filed for the relief of entire

extent of 4543 sq.ft., and under Section 25 (a) of the TamilNadu Court Fees and

Suit Valuation Act, in a suit for declaratory decree or order, whether with or

without consequential relief not falling under Section 26 of the Act, where the

CRP.PD.No.472 of 2017

prayer is for a declaration and for possession, the Court fee has to be computed

on the market value of the property or on Rs.1,500/- which ever is higher and if

the property is a house site, the Court fee has to computed on actual market

value.

5. On perusal of the records, the market value of the sale deed dated

23.09.1988 was objected by the District Collector and the market value was

fixed at Rs.14,49,500/-. Accordingly, the petitioner also paid additional stamp

duty of Rs.1,90,940/- whereas the amendment by the petitioner has now

reduced the extent of the suit property to 1674 sq.ft., from 4543 sq.ft.

Therefore, the Court fees has to be calculated for the proportionate value of the

suit property admeasuring 1674 sq.ft. In this regard, the learned counsel relied

upon the judgment reported in 2014 (2) CTC 256 [D.Nagaraj Vs. A.Devaraj],

the relevant portion reads as under:-

“5 . However, it happens to be the further contention of the learned counsel for the petitioner that, when the subject matter of the suit was rightly or wrongly valued at a particular rate in the plaint, the appellate court cannot question the adoption of the very same value in the appeal, when the decree passed by the trial court in entirety is challenged. The said contention cannot be accepted. What section 52 of the Tamil Nadu Court Fees and

CRP.PD.No.472 of 2017

Suits Valuation Act, 1955 contemplates is payment of court fee in an appeal on the subject matter of the appeal, if it is made a subject matter of the suit in the court of first instance and not what was the value furnished in the court of first instance. For example, if a suit has been filed for recovery of money with interest and the suit is decreed partly and part of the claim of the plaintiff is disallowed, the plaintiff who prefers an appeal on the disallowed portion of the claim, cannot be compelled to pay court fee once again for the portion allowed by the trial court, which is not in challenge in the appeal by the plaintiff. Similarly, when a claim of the plaintiff is allowed by the trial court with interest, the appeal shall not be valued on the claim made in the plaint, but the valuation of the subject matter of the appeal, shall be loaded with interest awarded by the trial court up to the date of the decree of the court against which the appeal is filed.

6 . In a suit for specific performance of a contract, whether with or without possession, fee shall be payable computed on the amount of consideration regarding the subject matter of the suit.

Suppose a contract for sale has been entered into for the sale of a number of items of properties and some of the items have been conveyed in part performance of the agreement for the sale, the purchaser under the agreement cannot be expected to file a suit for the performance of the contract in respect of the entire properties covered by the agreement. On the other hand, he can omit that part of the agreement, regarding which he has already obtained sale deed and possession and confine his claim to the

CRP.PD.No.472 of 2017

rest of the properties covered by the agreement for sale.

7 . This is quite clear from the terminology used in Section 42 of the Act. Such an interpretation has been accepted in a number of decisions, which this court is not going to mention here, as it is unnecessary, since this court accepts the proposition made by the learned counsel for the revision petitioner. However, a difficulty has arisen in this case in valuing the unperformed portion of the contract under the suit agreement for sale.

8 . The respondent herein, who figured as the plaintiff, chose to value the unperformed part of the contract at Rs. 4,08,500/- on the assumption that the balance amount of consideration would be referable to the property, which was already conveyed to the plaintiff in terms of the agreement. In this case, the suit sale agreement was entered into for the sale of items 1 and 2 in the plaint schedule. So far as item No. 1 of the plaint schedule is concerned, admittedly, conveyance had been completed and there was no need for the plaintiff to include a prayer regarding item No. 1. The same was the reason why the respondent herein/plaintiff chose to value item No. 2 alone for the purpose of payment of court fee and jurisdiction. Whether such a valuation made is proper or not? - is the further question that arises for consideration.

9. It is not the case of either of the parties that out of the total sale consideration, a sum of Rs. 13,30,000/- was paid as sale consideration of item No. 1. Neither the plaintiff nor the defendant chose to furnish the split up particulars of the value of

CRP.PD.No.472 of 2017

item Nos. 1 and 2 separately to enable the court to decide at what amount the second item is to be valued for the purpose of payment of court fee. It transpires a sale deed came to be executed in favour of the respondent herein/plaintiff on 24.10.2005 under Document No. 3199/2005 in respect of item No. 1 alone. The sale consideration recited therein is Rs. 1,00,800/-. In the absence of any other document showing that the value of the first item was more than the said amount, we have to take the said amount only as the value of item No. 1 of the plaint schedule, regarding which no relief was claimed. If that amount is deducted from the total sale consideration agreed to between the parties as evidenced by the suit sale agreement, the balance sale consideration, namely Rs. 16,37,700/-, shall be referable to the second item of the suit properties. Hence, it shall be proper to hold that the value of the unperformed part of the obligation under the agreement should be valued at Rs.16,37,700/- as the balance sale consideration after deducting the sale consideration for the first item of the suit property. If such a calculation is made, the suit should have been valued at Rs. 16,37,700/- and court fee should have been paid by the plaintiff on the basis of such value. Similarly, the appeal should have been valued at Rs. 16,37,700/- and court fee should have been paid thereon on the above said amount.”

6. This Court held that “What section 52 of the Tamil Nadu Court Fees

CRP.PD.No.472 of 2017

and Suits Valuation Act, 1955 contemplates is payment of court fee in an

appeal on the subject matter of the appeal, if it is made a subject matter of the

suit in the court of first instance and not what was the value furnished in the

court of first instance.” In the case on hand, the market value of the entire suit

property admeasuring 4543 sq.ft., was fixed at Rs.14,49,500/-. Subsequently, it

was reduced to 1674 sq.ft., and as such, the trial Court has pecuniary

jurisdiction to try the suit.

7. In view of the above discussion, the judgment and decree dated

03.12.2016 passed in C.M.A.No.31 of 2015 on the file of the learned First

Additional District Court, Erode confirming the judgment and decree dated