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M. Ganapathy (died) & Others v/s T. Chandra Kala Bhakyalakshmi (died) & Others

    CRP.(PD). No. 2630 of 2016 & CMP. No. 13577 of 2016

    Decided On, 20 July 2018

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE P. VELMURUGAN

    For the Petitioners: K. Subramanian, SC for S. Punniyakotti, Advocate. For the Respondents: R1, M. Aravind Subramaniam, Advocate, R2 to R4, notice served - No appearance.



Judgment Text

(Prayer: Civil Revision Petition is filed under Article 227 of the Constitution of India to set aside the fair and decreetal order dated 26.02.2016 passed in OS.No.453 of 2005 on the file of the III Additional District and Sessions Judge, Coimbatore.)

1. The relief sought for in the revision petition is to set aside the fair and decreetal order dated 26.02.2016 passed in OS.No.453 of 2005 on the file of the III Additional District and Sessions Judge, Coimbatore.

2. The revision petitioners are the defendants 2, 4 to 7 in the suit. The first respondent herein is the plaintiff. The respondents 2 to 4 are the defendants 9 to 11 in the suit.

3. The first respondent is the plaintiff in OS.No.1707 of 2000 filed for permanent injunction. The first respondent/plaintiff filed IA.No.624 of 2007 in OS.No.453 of 2005 for amendment of the plaint, wherein the revision petitioners herein filed counter and resisted the application. By an order dated 19.02.2008, the said application was allowed by the Additional District Judge, (FTC-I), Coimbatore. Challenging the said order, the revision petitioners preferred CRP.Nos.1184 to 1186 of 2008, this Court by an order dated

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31.10.2008 set aside order dated 19.02.2008 passed by the Additional District Judge, (FTC-I), Coimbatore in IA.Nos.624, 665 and 668 of 2007 in OS.No.453 of 2005. Subsequently, the matter was taken up to the Hon'ble Supreme Court and ultimately the matter was remanded back by way of revision, the said revision was allowed by confirming the order of trial Court for amendment.

4. The revision petitioners disputed that the suit property has not been correctly valued and not paid the correct Court fees. At last, this Court by an order dated 01.03.2013 made in CRP.Nos.53 and 858 of 2013 observed as follows :-

14. In such a view of the matter, the order made in IA.No.272 of 2012 cannot be allowed to sustain. All the reasons stated in the impugned order for dismissing the application are not sustainable. In view of the above, I am inclined to dispose of the revision petitions with the following directions:-

I. The Court below shall forthwith frame a proper issue in respect of the valuation of the suit and the Court fee as required under Section 12 of the Tamil Nadu Court fee and Suits Valuation Act, 1955.

II. The trial Court shall try the said issue as preliminary issue and allow the parties to let in both oral and documentary evidence on the same and then decide the said issue in accordance with law.

III. It is further directed that notwithstanding the observations made in the order in these interlocutory applications, the trial Court will issue summons to any witness, whom, either the plaintiff or the defendants want to examine and examine those witnesses, provided their evidence will be relevant for deciding the preliminary issue.

IV. The Commissioner, who has been appointed as per the order passed in the earlier application will be a competent witness and he will be examined in respect of the preliminary issue as a Court witness.

V. The report submitted by the Valuers to the Commissioner, which has been, in turn, produced as part of the Commissioner's report, shall also be considered and the contents of the same shall be proved by examining the Engineer's before the Court below as witnesses.

VI. The learned counsel for either side would consent that the deposition of the joint sub Registrar which has already been recorded shall be taken as evidence in this preliminary issue as PW1.

VII. It is left open for the parties to raise before the Court below as to whether the valuation of the suit shall be made as it was on the date of suit or on the date of amendment.

Based on the said order, the trial Court has framed the preliminary issue whether the suit has been properly valued and the Court fee paid on the plaint is proper and correct? After enquiry, the trial Court answered the preliminary issue in favour of the plaintiff by holding that the suit has been correctly valued and that the Court fee paid is proper and correct. Feeling aggrieved against the said order dated 26.02.2016 passed by the III Additional District and Sessions Judge, Coimbatore in OS.No.453 of 2006, the revision petitioners are before this Court.

5. The learned counsel for the revisions petitioners would submit that the suit is pending from the year 2000. Originally the first respondent/plaintiff filed the suit and thereafter filed IA.No.624 of 2007 for amendment of the plaint and filed IA.Nos.665 of 2007 filed seeking appointment of an Advocate Commissioner to make local inspection of the suit property for the purpose of ascertaining the value of the building with the assistance of a Civil engineer and file a report. IA.No.668 of 2007 filed seeking a direction to the Joint Sub Registrar, Main Office at Railway Station Road, Coimbatore to produce the details regarding the guideline value of the suit property, both the applications were dismissed by an order dated 19.02.2008. Further, the contention of the revision petitioner is that they took up the matter upto the Hon'ble Supreme Court, the SLP was withdrawn with liberty to take appropriate remedy as may be available in law. The revision petitioners are entitled to raise the plea that the amendment has to be taken from the date of allowing the amendment application and not take back to the suit was originally filed. The plaintiff has not valued the suit property correctly and not paid the proper Court fee, therefore, the revision petitioners raised the objections and the trial Court held that the plaintiff valued the suit property properly and also not paid the correct Court fees. Before preferring the revision petition, this Court on earlier occasion directed the trial Court to frame the preliminary issue and answer them in accordance with law. The trial Court framed the preliminary issues and examined the Advocate Commissioner and the Sub Registrar and other authorities and marked the valuation report and the sale deed purchased by the plaintiff. Further, on the date of amendment the value of the property is morethan what the plaintiff valued, but the trial Court failed to consider the fact and gone back to the date of filing of the suit and also placed reliance on the judgments reported in (i) AIR 1987 SC 2085 in the case of Smt.Tara Devi v. Sri.Thakur Radha Krishna Maharaj through Sebaits Chandeshwar Preasad and Meshwar Prasad and another and (ii) 1998-2-LW 161 in the case of D.Pattammal V. K.Kalayanasundaram. The Court below while dealing with the matter wrongly held that the valuation as on date of filing of the suit. Even though, the plaintiff has not produced any document to show that what was the value of the suit. The suit was originally filed in the year 2000 and the amendment was allowed in the year 2009. Therefore, the amendment has to be taken into consideration from the date of amendment and not from the date of filing of the suit. The market value of the suit property is about Rs.6,49,86,410/- the Court fees to be paid is Rs.46,73,980/-, the plaintiff suppressed the market value and valued the suit property for Rs.15lakh only, this fact has not been considered by the trial Court and simply reiterated the value fixed by the plaintiff is correct. From the evidence, the suit has to be valued from the date of amendment and Court fees has to be paid. The plaintiff has not correctly paid the Court fee, hence the plaint has to be rejected.

6. The learned counsel for the first respondent/plaintiff would submit that it is a settled proposition of law, that any amendment is effected, unless the Court specifically states that the amendment effects from the date of allowing the amendment, the amendment would take from the date of filing of the suit. In this case, on earlier occasion the trial Court allowed the amendment application and the trial Court has not given any findings that the amendment will be effected from the date of allowing the amendment application. It only shows that the amendment effected from the date of filing of the suit. Therefore, the valuation can be made on the date of filing of the suit and not on the date of amendment was allowed. The trial Court rightly held that there is no specific direction from which date the amendment came into force and the effect of the amendment. Taking into consideration, in the absence of any such specific observation from the date of amendment, therefore, it goes back to the date of filing of the suit. Admittedly, there is no evidence to show the value of the suit property. Even the learned Senior counsel appearing for the revision petitioners would submit that the property is situated at prime locality of Coimbatore, it is adjacent property to the District Court complex and there is no vacant site is available in the nearby areas and there is no possibility to ascertain the value of the property from the recent sale deed and no sale deed has been effected either from the date of filing of the suit or subsequently. The plaintiff herself stated that value of the property is Rs.1,745/-per sq.ft, even that also was not properly calculated. Whereas, the reading of the order passed by the trial Court would show that the first respondent/plaintiff was not able to produce any sale deed either on the date of filing of the suit or subsequent to the amendment, the defendants examined DW1 to DW4 and marked Exs.B1 and B2 and Ex.C1 to C4 were marked by the trial Court.

7. In the earlier order made in IA.No.272 of 2011 dated 31.07.2012, the guideline value was fixed at Rs.2,460/- per sq.ft. The valuation report filed in Ex.C2 was not properly considered by the trial Court. Since, there is no specific direction at the time of amending the plaint for recovery of possession, as per general principle of law, this amendment should go to date of amendment, it came into effect from the date of filing of the suit in the year 2000. At the time of filing the suit, the value of the suit is more than 15lakhs, if the property is undervalued in order to evade the Court fees, either the Government or the defendants have to prove what is the actual value of the property. The collection of Court fee is between the plaintiff and the Court concerned and to certain extent the Government is also responsible. In this case, the official witnesses who have been examined have not filed any materials to show that on the date of filing of the suit what was the actual value of the suit property, the revision petitioners and the other defendants in the suit have also not filed any documents, in the absence of one such documents, this Court finds there is no reasons to interfere with the order passed by the trial Court.

8. The suit is pending before the District Court, there is no pecuniary limit for the District Court, therefore the question of jurisdiction will not lie. Insofar as the collection of Court fees is concerned, when the revision petitioners feel that the suit is not correctly valued, it is left open for them to prove that on the date of filing of the suit what was the actual market value in the locality, if they are able to prove the same with relevant documents, the Court can consider the same, at the relevant point of time. At this juncture, the Court is not in a position to find out the value of the property for the purpose of fixing the Court fees. Therefore, there is no reasons to interfere with the order passed by the trial Court. Since, the suit is of the year 2000 and pending for more than 17years, considering the length of period, this Court directs the trial Court to dispose of the suit within a period of six months from the date of receipt of copy of this order, no extension of time will be granted.

9. In the result, the civil revision petition stands dismissed. No costs. Consequently, connected miscellaneous petition is closed.
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