Madras High Court
Rajan Premkumar vs Kresh Ammal on 3 April, 2023
C.R.P(MD)No.2351 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 03.04.2023
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
C.R.P(MD)No.2351 of 2022
and
C.M.P(MD)No.11364 of 2022
Rajan Premkumar ... Petitioner/Petitioner/
1st Defendant
Vs.
1.Kresh Ammal
2.Latha
3.Selvakumar ... Respondents 1 to 3/
Respondents 1 to 3/
Plaintiffs
4.Devabalan ...4th Defendant/
4th Respondent/
2nd Defendant
PRAYER: Civil Revision Petition is filed under Article 227 of
Constitution of India, to call for the records relating to the fair and
decreetal order, dated 02.09.2022 made in I.A.No.1 of 2019 in O.S.No.47
of 2014 on the file of IV Additional Subordinate Judge, Tiruchirappalli
and set aside the same.
For Petitioner : Mr.S.Manikandan
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C.R.P(MD)No.2351 of 2022
ORDER
The present civil revision petition has been filed against the fair
and decreetal order, dated 02.09.2022 made in I.A.No.1 of 2019 in
O.S.No.47 of 2014 on the file of IV Additional Subordinate Judge,
Tiruchirappalli.
2. The petitioner is the first defendant in O.S.No.47 of 2014 before
the IV Additional Sub Court, Tiruchirappalli. The petitioner is aggrieved
by the impugned fair and decreetal order, dated 02.09.2022 in I.A.No.1
of 2019. By the impugned order, the trial Court has dismissed the above
application filed by the petitioner under Order 14 of C.P.C. By the said
petition, the petitioner wanted the Court to raise a preliminary issue
regarding the Court fee paid by the second respondent (second plaintiff
in O.S.No.47 of 2014). It is submitted that the Court has committed a
grave error in rejecting the application and therefore, submits that the
impugned order is liable to be interfered under Article 227 of the
Constitution of India. The relevant portion of the impugned order reads
as under:
"7.As per decision of our Hon'ble High Court preliminary
issue regarding Court fee can be decided on the plaint
averments. 1st plaintiff is mother of 3rd plaintiff and 2nd
plaintiff is wife of 3rd plaintiff and contention of plaintiffs that
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C.R.P(MD)No.2351 of 2022
they are living together and wife of joint family members
purchased the property from 3rd plaintiff. On perusal of the
plaint averments would reveal that plaintiffs are in joint
possession. This Court is of view that since the plaintiffs are in
joint possession and member the joint family purchase the suit
property and they are in joint possession at the time of the
purchase of the suit property, plaintiffs paid the Court fee under
37 (2) of Tamil Nadu Court Fee Act is correct.
In the result, this petition is dismissed. No cost."
3. The Court has referred the decision of this Court in the case of
N.Ramachandran Vs Munisamy and others reported in 1998 (1) CTC
560. A specific reference is made to paragraph 13, which reads as under:
"13. I am not able to subscribe my view to the submission
made by the learned counsel for the respondent. As quoted
above, this Court and the Apex Court, while considering the
question whether to apply 37(2) or 37(4) of the Court-Fee
Act, the Court has to go into the averment of the plaint
alone and it need not be influenced by the averment in the
written statement."
4. The learned counsel for the petitioner has placed reliance on the
decision of this Court in the case of S.Mahendhiran and others vs
S.Velmurugan (C.R.P(MD)Nos.510 and 514 of 2019) vide order, dated
13.02.2019. A specific reference is made to paragraph No.13, which
reads as under:
"13. On careful perusal of the above Section makes it
clear that when the plaintiff is not in possession of the
property, he has to pay the Court fee on the market value of
the plaintiff's share. Admittedly, he has not paid the Court
fee as per Section 37 of the Court Fee Act but he has paid
Court fee only under Section 37(2) of the Court Fee Act.
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C.R.P(MD)No.2351 of 2022
Therefore, this Court is of the view that till the disputed Will
is established, a stranger to the family cannot claim joint
possession and he has to necessarily pay the Court fee
under Section 37(1) of the Court Fee Act. The trial Court
has not considered this aspect and therefore, the order of
the trial Court dated 17.12.2018 in I.A.No.358 of 2017 is
hereby set aside. The plaintiff is directed to pay the Court
fee under Section 37(1) of the Act on the market value of his
share, within a period of two months from the date of
receipt of a copy of this order."
5. An issue arise when a material proposition of fact or law is
affirmed by the one party and denied by the other as per Order 14 Rule 1
of C.P.C. There are two kinds of issues, namely, issue of facts and issue
of law as per Sub Clause 2 Rule 1 of Order 14 of C.P.C. As per Sub
Clause 5 to Rule 1 of Order 14 of C.P.C., at the first hearing of the suit
the Court shall, after reading the plaint and the written statements, if any,
and after examination under Rule 2 of Order X and after hearing the
parties or their pleaders, ascertain upon what material propositions of
fact or of law the parties are at variance, and shall thereupon proceed to
frame and record the issues on which the decision of the case appears to
depend.
6. The Court has to pronounce judgment on all issues that may be
framed under Rule 5 of C.P.C. The Court may at any time before passing
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C.R.P(MD)No.2351 of 2022
a decree amend the issues or frame additional issues on such terms as it
thinks fit, and all such amendments or additional issues as may be
necessary for determining the matters in controversy between the parties
7. The case of the petitioner before the trial Court appears to be
that the second respondent/second plaintiff in O.S.No.47 of 2014 is not
in joint possession of the property. It is submitted tha since the second
respondent is not in joint possession of the property filed for partition of
the property, Court fee ought to have been paid on the market value in
terms of Section 37 of the Tamil Nadu Court Fees and Suit Valuation
Act.
8. O.S.No.47 of 2014 has been filed by the respondents 1 to 3
herein. The first respondent herein appears to have given a power of
attorney to the third respondent, who is none other than the son of the
first respondent and sibling of the petitioner herein and the fourth
respondent. In other words, the petitioner, the respondents 3 and 4 are
siblings born to late.Samraj.The third respondent as the power of
attorney of the first respondent appears to have executed a sale deed in
favour of the second respondent. The issue relating to joint possession
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C.R.P(MD)No.2351 of 2022
and ownership cannot be determined at the preliminary stage without
evidence.
9. The trial Court can exercise its power under Order 14 Rule 5 of
C.P.C and frame any additional issues, if required at the appropriate
stage of the case. In my view, impugned order does not call for any
interference at this stage, it can be determined at the time of trial subject
to the evidence. The respondent/plaintiff can be called upon to pay
deficit Court fee, if joint possession is not proved during trial.
10. Therefore, the present Civil Revision Petition stands disposed
of by directing the trial Court to keep in mind the issue relating to joint
possession to arrive the Court fee that may be payable by the respondents
1 to 3 at the time of final hearing after trial before passing final judgment
and decree. No costs. Consequently, connected miscellaneous petition is
closed.
03.04.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
sn
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C.R.P(MD)No.2351 of 2022
To
1.The IV Additional Subordinate Judge,
Tiruchirappalli.
2.The Section Officer
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis
C.R.P(MD)No.2351 of 2022
C.SARAVANAN,J.
SN
C.R.P(MD)No.2351 of 2022
03.04.2023
https://www.mhc.tn.gov.in/judis
