1. The petitioners are aggrieved by the dismissal of the application under Order 14, Rule 2, C.P.C. The petitioners' are the defendants 3 to 5. The suit O.S.No.338 of 1997 filed by the respondents 1 to 7 herein is one for declaration and injunction. The written statement was filed on 24.12.1997. On 19.4.2001, the petitioners filed an application to try the issue relating to valuation as a preliminary issue. This was dismissed by the learned Additional District Munsif, Namakkal on the ground that it was belated and that the court- fee paid is correct.
2. The learned counsel for the petitioner Mr. K. Raman Raj submitted that the Court below had failed to exercise its power under Section 12(2) of the Tamil Nadu Court-Fees and Suits Valuation Act ("Act" in short). According to the learned counsel all questions relating to the valuation ought to be considered by the Trial Court before evidence is recorded. Not having decided the question at the appropriate time, it was not open to the Court to dismiss the application that it was belated and that it had been filed after the evidence have been recorded. The learned counsel submitted that when the written statement was filed before the first hearing of the suit the petitioners had raised this objection at the earliest juncture and the same ought to have been considered.
3. Mr. Valliappan for M/s.Sarvabhauman Associates took notice on behalf of the caveator. He submitted that application had been filed under Order 14, Rule 2, C.P.C. and the code does not provide for trial of any issue as a preliminary issue, unless it comes within the two categories listed in Order 14, Rule 2, C.P.C. The learned counsel would submit that Order 14 makes it clear that the Court is bound to render its findings on all issues even though the suit may be decided on one issue alone. But this is subject to Rule 2 which provides that the Court may decide the preliminary issue if it is an issue of law alone and that is as stated above, if the issue relates to jurisdiction or bar. The learned counsel submitted that the Code does not provide for framing and deciding the issue of valuation as a preliminary issue. Therefore, there is no error of jurisdiction and the order cannot be revised under Section 115, C.P.C. He relied on the following judgments:
(1)Selvaraj v. Kannan, ; (2) V. Rangaswami Ayyangar v. Ammayee Ammal, AIR (30) 1943 Mad. 490; (3) C.A. Khabeer v.Abdul Mubeen, 2001 (2) MLJ 817; (4) Laljivora v. Srividya, 2001 (2) CTC 411 ; (5) Smt. Aruna Kumari v. Ajay Kumar, ; (6) Hardwari Lal v. Pohkar Mai, AIR 1978 P & H 230; (7) Sahul Hameed Rowther v. K.C.P. Mohideen Pichai, 1948 (I) MLJ 270; (8) Vellayya Konar v. Ramaswami Konar, AIR 1939 Mad. 894 ; (9) Kaka Hajee Md. Ishaque Sahib v. Kaka Md. Saddiq Sahib, 1970 (1) MLJ 207;
The affidavit filed in support of the petition is devoid of any particulars. It merely states that the plaintiffs/respondents herein had filed the suit for permanent injunction and that the petitioners had filed their written statement which must be treated as part and parcel of the affidavit and that the suit is now at the trial stage, when P.W.I has been examined and that, it is posted for cross-examination' and that the defence had been raised in the written statement that the court-fee paid is not proper and therefore, that should be decided first, since only if that is decided, it will be possible to determine whether the Court has jurisdiction to try the suit. If we look at the written statement which is referred to in the affidavit to be treated as part and parcel thereof, the plea relating to court-fee merely states that the suit has not been valued properly for the relief sought for and that the suit for bare injunction is not maintainable. There is no specific averment either in the written statement or in the affidavit filed in support of the petition as to how the suit is not properly valued. By merely raising the defence that the suit is not properly valued, the petitioner cannot insist that the issue of valuation being treated as preliminary issue. It will lead to the Court embarking upon piecemeal trial causing embarrassment to the litigants. That is why after the 1976 Amendment of the Code, the Court is directed to decide all the issues and it is provided that only 2 issues may be treated as preliminary issues and that too only if they are pure questions of law. For the first time, before this Court the petitioners have come out with what according to them is the error in valuation. According to the petitioners, the suit ought not to be valued under Section 25 of the Act, but under Section 40 of the Act, since the plaint speaks of the document dated 9.9.1996 and therefore, the suit will actually be not one for bare injunction but for cancellation of the document. Strictly speaking what the petitioners are assailing is the category of suit and not the valuation of the suit. The Court is required to decide under Section 12(2) of the Act, the questions relating to valuation. In fact, the difference between the issue relating to valuation and category was clearly explained in the Nemi Chand v. The Edward Mills Co Ltd, 1953(1) MLJ 117 which of course deal with Section 12 of the Court-Fees Act of 1870. There the question that arose was regarding the apparent conflict between Section 12 of the Court-Fees Act and Order 7, Rule 11, CPC. According to the Court-Fees Act, the decision regarding under Order 7, Rule 11 CPC rejection of a plaint for non-payment of deficit Court Fee is a decree and appealable. The Supreme Court held that the provisions of the two statutes can be reconciled by holding that the parties cannot impugn a decision under Section 12 by preferring an appeal but that it docs not confer on that order a complete immunity from examination by a higher Court. The learned Judges of the Supreme Court have held that when Section 12 declares that a decision regarding the valuation is final, it places it on the same footing as an interlocutory, non-appealable order. It was held therein that there was a difference between questions relating to category of suits and valuation of suits and what was held to be final under Section 12 was only valuation since the question relating to the category of suits is appealable. In this case, the petitioners appear to be challenging the category of suits and that too only in revision before this Court. Before the Court-below they had not even clearly stated why the Court-fees paid was wrong. The Court-below therefore, held that if the question was one of jurisdiction it should have been raised in the written statement and that might even be tried as a preliminary issue. The Court thereafter valued the relief as prayed for in the plaint and had come to the conclusion that it was correct. The Court below also held that this issue could have been raised before P.W.I was examined on 13.4.2000, but on that date after the chief examination was over the petitioners had asked for time for cross-examination and therefore, it was adjourned to 16.4.2001 and then it was represented to the Court that the matter would be settled out of Court and it was adjourned to 18.4.2001, then to 19.4.2001 and finally to 20.4.2001 and thereafter this petition for trying the issue as a preliminary issue had been filed. Therefore, the Court seriously had doubts about the bona fides of the petitioners. The vague averment that the suit has been wrongly valued will not entitle the petitioners to insist upon the Court to decide the question regarding valuation. In fact, the Court-Fees Act calls upon the defendant to raise this issue either in the written statement or otherwise before the first hearing of the suit which may be the date on which issues are settled or before evidence is recorded on the merits of the claim. A perusal of the order of the Court below clearly shows that even this ground namely that the suit ought to have been valued under Section 40 of the Court- Fees Act was not raised before the Court. In these circumstances, I do not, think there is any error in jurisdiction on the part of the Court below.
4. In V. Rangaswami Ayyangar v. Ammayee Animal, AIR 1943 Mad. 490, again it was held that a suit filed by a person who is not a party to the mortgage deed which he assails as sham and nominal cannot value his suit as one for cancellation of the mortgage deed.
5. In Sahul Hameed Rowther v. K.C.P. Mohideen Pichai, 1948 (1) MLJ 270 the Division Bench of this Court held that in that case it cannot be said that he should pay additional court-fee for cancellation merely because he mentions the sham document in his plaint.
6. In Kaka Hajee Md. Ishaque Sahib v. Kaka Md. Saddiq Sahib, 1970 (1) MLJ 207 where again the question arose as to whether the suit has to be valued under Section 25 or under Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act and the learned Judge therein held that the suit was properly valued under Section 25(a) and not under Section 40 for the purpose of Court-fee.
7. These judgments may perhaps support the case of the respondents. But it is not necessary to deal with them because neither in the written statement nor in the affidavit filed in support of the petition did the petitioner raise the objection that the suit should have been valued under Section 40 and not under Section 25. This ground was raised only before this Court. In any event, the only question that has to be decided is whether the Court should have taken up the issue of valuation as a preliminary issue or not and whether the valuation has resulted in injustice or there has been a failure to exercise the jurisdiction vested in it. The other decisions relate to a power of Court under Order 14, Rule 2. CPC.
8. In Smt. Aruna Kumari v. Ajay Kumar, the learned Judge held that even if the preliminary issue is one of jurisdiction but the said issue is a mixed question of law and fact, the issue cannot be treated as a preliminary issue.
9. Hardwari Lal v. Pohkar Mai, AIR 1978 P & H 230 was again a case where the issue of valuation of suit was refused to be tried as a preliminary issue. The learned Judge held that since Order 14 Rule 2 CPC, clearly emphasize the general rules for the adjudication of the entire case. It obviously means that a discretion is vested in the Court to either try it as a preliminary issue or to decide all the issues and when the exercise of discretion is neither illegal nor un-judicious, it cannot be a subject matter of attack in a revision petition.
10. Laljivora v. Srividya, 2001 (2) CTC 411 was a case where the petitioner prayed that additional issues should be framed relating to valuation of court-fees, and the scope of Order 14, Rule 2, CPC was considered and it was held and that the application filed by the petitioner is nothing but dilatory tactics to prolong the litigation.
"5. Section 12(2) of the Court Fees Act provides that the defendant should raise the objections questioning the valuation of the suit properties made by the plaintiff before the evidence is taken, so that it may be possible for the trial Court to consider the question whether the suit property has been properly valued or not and whether the court fees paid thereon is correct or not. The Court, under the provisions of Section 12(2) of the Court Fees Act undertakes the exercise of ascertaining the value of the suit property to find out whether there was any deficit in the court fees paid by the plaintiff and that process could also be completed before the commencement of the trial of the suit. In other words. Section 12(2) of the Court-Fees Act imposes a bar on the defendant to raise the question of valuation of the suit properties after the commencement of the trial of the suit. From the nature of the provision, it is clear that Section 12(2) of the Court Fees Act is intended to operate against the defendant from questioning the valuation of the suit property at a later stage after the commencement of the trial. The provisions of Section 12(2) of the Court Fees Act also gives a clue that the power should be exercised before the evidence is recorded, as a failure of the plaintiff either to carry out the amendment or to pay the deficit court fee would result in the rejection of the plaint. The object of the section is that after recording the entire evidence in the case, if the Court holds an enquiry as regards the valuation of the suit property and if the plaintiff, on the basis of enhanced valuation, does not carry out the plaint amendment or pay the deficit court fees, the entire exercise done by the Court in recording the evidence would become futile and stultification of the evidence already recorded. It is only with these objects in view. Section 12(2) of the Court Fees Act insists that the statutory power should be exercised by the Court before the evidence is recorded. Therefore, I hold that in the instant case, the trial Judge has not exercised the powers under Section 12(2) the Court Fees Act as she has exercised the power, in the instant case, after the evidence is recorded."
In the case on hand, the petitioner had really not stated how the valuation is incorrect and in any event, it had been raised at a belated stage as per Section 12(2) of the Court-Fees Act. So he cannot pray for trial of this issue as a preliminary issue. Order 14 Rule 2, CPC gives the Court the power to deal with only two kinds of issues as preliminary issues and that too only if they are issues of law. The issue relating to valuation is not one such and on this ground also the order is not liable to be revised. Therefore, it is not necessary for me to decide whether the suit ought to have been valued under Section 25 of the Act or Section 40 of the Act. A reading of the judgment clearly shows that the petitioner has taken his time to raise his objection regarding valuation. There is absolutely no reason to interfere with the impugned order. The civil revision petition is dismissed with costs of Rs. 1500.