ORDER
1. The petitioner is aggrieved by the order refusing to try the suit relating to Court fees as a preliminary issue.
2. The respondent filed O.S. 130/98 “for redemption of mortgage and deliver vacant possession of the suit property to the plaintiff … and also pay damages for the illegal use and occupation … and for other reliefs”. The suit was filed in 1998. The petitioner herein filed her written statement denying her liability and prayed for dismissal of the suit. An additional written statement was filed by her stating that the respondent is not entitled to seek recovery of possession without paying the proper Court fees. To this, a reply statement was filed in November 1999. Thereafter, I.A. No. 457 of 1999 was filed by the petitioner under Order 14, Rule 2, CPC and Section 12(2) of the Tamil Nadu Court Fees Act to try the additional issues No. 1 and 4 relating to Court fees as preliminary issue. This was resisted by the respondent herein. The Court below refused to try these issues as preliminary issue and postponed them for decision along with other issues. Aggrieved by this, the revision has been filed.
3. Mr. Lakshmi Narayanan, learned counsel for the petitioner submitted that the Court below erred in postponing the decision of the issues relating to Court fees when Section 12(2) of the Court Fees Act (hereinafter referred to as “the Act” makes it mandatory for the Court to decide this question immediately. He submitted that if this issue is decided, then, the Court will have no jurisdiction to try the suit and therefore Section 14(2) of the C.P.C. will apply which empowers the Court to dispose of the case on a preliminary issue when it relates to jurisdiction of the Court or bar of suit. He relied on the following judgments to support his case:
(i) Meenakshisundaram Chettiar v. Venkatachalam Chettiar, 1979 (2) MLJ 19; (2) I.T.C. Limited v. Debts Recovery Appellate Tribunal, ; (3) Nemi Chand v. Edward Mills Co. ; (4) Raju Gramani v. Srinivasa Gramani, 1958 (1) M.L.J. 308
4. He submitted that there is really no difference between the scope of Section 12(2) of the Act and Order 7, Rule 11, C.P.C and both have to be construed in consonance with each other and that clever drafting should not be allowed to come in the way of determining what the correct value of the suit is and that no party can deliberately undervalue the suit and thus pay a lower Court fee.
5. Mr. Ramesh Babu, learned counsel for the respondent on the other hand submitted that the petition was nothing but an abuse of process of law and had been filed belatedly to drag on the trial and this question that proper Court fees has not been paid cannot be tried as a preliminary issue as already been decided by this Court in two decisions namely, Thandavaraya Poosali v. Periyasamy Asari, 2000 (3) M.L.J. 342 and Laljivora v. Srividya 2001 (2) CTC 411 :2001(2) M.L.J. 481. Therefore, this is nothing but a dilatory tactic adopted by the petitioner who knows that her defence cannot be sustained. He also submitted that the application is highly belated and the additional written statement itself had been filed when the evidence of P.W.1 had been concluded and cross-examination had begun. Therefore, even assuming that the objection relating to Court fee, is sustainable, the provisions of Section 12(2) of the Court Fees Act cannot come to his aid.
6. Section 12(2) of the Court Fees Act reads thus:
“Any defendant may by his written statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim but subject to the next succeeding Sub-section, not later, plead that the subject matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant on the merits of the claim. If the Court decides that the subject matter of the suit has not been properly valued or that the fee paid is not sufficient, the court shall fix a date before which the plaint shall be amended in accordance with the Court’s decision and the deficit fee shall be paid. If the plaint be not amended or if the deficit fee be not paid within the time allowed, the plaint shall be rejected and the Court shall pass such order as it deems just regarding costs of the suit,” (Italics supplied)
7. That the defendant has the right to take an objection regarding the improper valuation of the suit or insufficiency of Court fees even by a petition supported by an affidavit and not necessarily by the written statement has been decided in the decision reported in Raju Gramani v. Srinivasa Gramani, 1958 (1) M.L.J. 308. Therefore, it was open to the petitioner to raise this question by his written statement or even by an affidavit supported by petition. But, the aforesaid Section clearly lays down that this objection should be raised before the first hearing of the suit or before evidence is recorded on the merits of the claim.
8. Now, what is the first hearing of the suit? The definition in Rule 3(6) of the Civil Rules of Practice defines “first hearing” thus:
‘First hearing’ includes the hearing of a suit for settlement of issues, and any adjournment thereof”
The word “first hearing” appears in the Code in several places. Under Order 10, C.P.C, the Court has the power to ascertain whether the allegations in the pleadings are admitted or denied at the first hearing of the suit. The oral examination of parties to elucidate matters in controversy is also permissible at the first hearing of the suit under Order 10, Rule 2, C.P.C. Order 13, Rule 1, C.P.C, before the 1976 amendment had dealt with the production of documentary evidence at first hearing. Since this led to some controversy, the words “first hearing” in the heading of Order 13, Rule 1, C.P.C were replaced by the words “at or before the settlement of the issues” and Rule 1 was amended by replacing the words “at first hearing of the suit” with “at or before the settlement of the issues”. Order 14, C.P.C again contains the words “at the first hearing”. Order 14, Rule 1(5), C.P.C deals with settlement of issues and this again, uses the words “at the first hearing of the suit”. The Court frames the issues for deciding the case right after examination under Order 10, Rule 2, C.P.C and hearing the parties or other pleaders and after reading the plaint and written statement at the first hearing of the suit. Order 14, Rule 6, C.P.C provides that the Court need not frame and record issues where the defendant at the first hearing of the suit makes no defence. Therefore, the first hearing of the suit obviously extends up to the point issues are framed. If the defendant is set ex parte, the Court does not frame or record issues. That is why the definition of “first hearing of the suit” is an inclusive definition. Under Order 14, the Court is empowered to pronounce judgments at the first hearing of suit if it appears that the parties are not at issue. In fact, the heading of Order 15 itself reads thus: “Disposal of the suit at the first hearing”. Then, Sub-rule 3 of Order 15 deals with the manner in which suit shall be disposed where parties are at issue. The Rule says that where issues have been framed, since parties are at issue, the Court can still pronounce judgments if without further argument or evidence than the parties can at once adduce is required, the Court may still proceed to determine such issues and pronounce judgments. If not, Rule 2 requires the Court to postpone the further hearing of the suit and thereafter, fix a date for production of further evidence or for further arguments as the case requires. The Court is empowered to adopt the procedure under Sub-Rule 1 of Rule 3 or Sub-rule 2 irrespective of whether summons has been issued for the settlement of issues only or for the final disposal of the suit. But, if the summons has been issued for final disposal of the suit, then Rule 4 provides that the Court in the absence of either party, producing evidence on which he seeks to rely, may pronounce judgments or may alter framing and recording issues, adjourn the suit for production of such evidence that is necessary for decision on those issues. Therefore, from this, it is clear that the first hearing of the suit can be any of the dates up to the date on which issues are actually framed and hence Civil Rules of Practice Rule 3(6) defines “first hearing” to include the date on which the suit is posted for hearing for settlement of issues at any adjourned date. So, the words “first hearing of the suit” may extend to any date until the issues are actually settled.
9. If the words “First hearing of the suit” is so understood, then under Section 12(2) of the Tamil Nadu Court Fees Act, the defendant can plead either by written statement or otherwise the defence relating to improper valuation of suit or insufficiency of Court fees before the first hearing of the suit. In this case the issues have been settled, therefore, the first stage before which the defendant could have raised his objection has passed. The Section provides for another stage when a defendant could plead as above. This is before the evidence is recorded on the merits of the claim. Therefore, after evidence is commenced on the merits of the claim, a reading of the Section indicates that the defendant does not have any further opportunity to plead either that the suit has not been properly valued or that the fees paid is not sufficient. In this case, both the stages have passed. The issues have been settled and even as per the admission of the petitioner, the additional issues have also been framed and it is also seen from a perusal of the judgment that trial had already started.
10. Section 12(2) of the Act also requires the Court to hear and decide these questions before evidence is recorded affecting such defendant on the merits of the claim. In this case since evidence has also been recorded, the procedure set down in Section 12(2) of the Act cannot be adopted. The learned counsel for the petitioner submitted that the Court should not have postponed this question, but ought to have decided the same and if the Court had found that the valuation is not correct, then, the Court should have directed the respondent to amend the plaint in accordance with the Court’s decision and for payment of deficit Court fee and if the petitioner had committed default in either amending the plaint or in payment of deficit fee within the stipulated time the plaint should have been rejected. In this case, the Court below rejects the application on the ground that this question had been raised by the petitioner when the evidence was in progress and therefore, it was highly belated.
11. Now, let us look at the decisions relied on by the counsel to support her case:
(i) In the decision reported in 1979(2) M.L.J 19, the Court dealt with an application under Order 7, Rule 11, C.P.C for rejecting the plaint, but in this case, the applications are under Section 14(2) for trying the payment of additional court fee as a preliminary issue and under Section 12(2). It was held, in the above cited case:
“Order 7, Rule 11 of the Code of Civil Procedure casts a duty on the Court to reject the plaint when the relief claimed is undervalued. If on the materials available before it the Court is satisfied that the value of relief as estimated by the plaintiff in a suit for accounts is under-valued the plaint is liable to be rejected.”
(ii) The decision cited by the learned counsel for the petitioner also dealt with the power of the Court to reject the plaint under Order 7, Rule 11, C.P.C even after the framing of issues and when the matter is posted for evidence. The Supreme Court referring to the decision reported in Azhar Hussain v. Rajiv Gandhi, 1986 Supp. S.C.C. 315 held that the fact that issues have been framed in the suit cannot come in the way of consideration of an application under Order 7, Rule 11, C.P.C. They also held that clever drafting creating illusions of cause of action are not permitted in law.
12. Even in these two cases, the question whether an application under Order 7, Rule 11, C.P.C is maintainable even after evidence has been recorded has not been considered. However, this is not material to the present case since we are not dealing with an application under Order 7, Rule 11, C.P.C.
13. As regards the decision, , the Supreme Court was considering the scope of Section 12 under the old Act, Court Fees Act 1870 and held that it should be read and construed keeping in view the provisions of Order 7, Rule 11, C.P.C. In the old Act, Section 12 ran thus:
“Every question relating to valuation for the purpose of determining the amount of any fee chargeable under this chapter on a plaint or memorandum of appeal shall be decided by the Court in which such plaint or memorandum, as the case may be, is filed, and such decision shall be final as between the parties to the suit.”
Therefore, the apparent conflict was the decision of the judicial Commissioner under Section 12 of the Court Fees Act was final and cannot be challenged in appeal whereas, an order rejecting the plaint under Order 7, Rule 11, C.P.C is a decree and is appealable. The Supreme Court while dealing with this held that the finality declared by Section 12 is limited only to the question of valuation, pure and simple and does not relate the category under which a certain suit falls and held thus:
“In other words, Section 12 when it says that such a decision shall be final between the parties only makes the decision of the Court on a question of Court fee non-appealable and places it on the same footing as other interlocutory non-appealable orders under the Code and it does no more than that.”
And again,
“The word “finality” construed in the limited sense in which it is often used in statutes means that no appeal lies from an order of this character as such and it means no more than that.”
This decision also, therefore, does not come to the rescue of the petitioner except to tell us that the provisions of the Code and the Court Fees Act should be construed in a manner that does not do violation to either of the provisions.
14. The decision reported in Raju Gramani v. Srinivasa Gramani, 1958 (1) M.L.J 308 is not relevant since the question was whether the word “plead” occurring in Section 12(2) of the Court Fees Act is restricted to the written statement alone. That does not come to the help of the petitioner.
15. Now, we come to the two decisions relied on by the learned counsel for the respondent:
(i) 2001(2) M.L.J 461 is a case where the suit was filed in 1996, written statement filed and issues framed in 1997, additional written statement filed in 1996.The suit was posted for hearing in 1999.The plaintiff was examined. The defendant filed an application seeking direction to frame the additional issue relating to valuation of suit and to try the issue as a preliminary issue. This was dismissed and the revision there against was also dismissed. The learned counsel for the petitioner submitted that that decision would not apply to this case because that was a case where, The application itself was to frame the additional issue whereas in this case, additional issues had been framed, the application was to try those additional issues as preliminary issues. But if one goes through the decision, that case is almost identical to the present case. In that decision, the learned Judge had held that under Order 14, Rule 2, C.P.C. only two issues can be decided as preliminary issue one is jurisdiction of the Court or a bar of suit and the issue relating to violation of the Court Fee does not fail under the provisions of Order 14, Rule 2, C.P.C. The learned Judge has specifically mentioned therein that though the arguments were advanced as if the issue of payment of Court fee should be decided as a preliminary issue the petition itself was only for a direction to frame an additional issue So the learned Judge had decided the case on the basis of the arguments even though in the petition the prayer was different. For the reasons cited in 2001(2) M.L.J. 461, I hold that the petitioner is not entitled to the relief sought for in an application under Section 12(2) of the Act.
(ii) Now, the other decision relied on is reported in 2000(3) M.L.J 342. The defendants had filed their written statement in 1991. When the case was ripe for trial, an application under Order 14 Rule 2(b) of C.P.C was filed to decide whether the suit had been properly valued and proper Court fee paid, as a preliminary issue. The application was resisted by the plaintiffs stating that the suit property had been properly valued and proper Court fee had been paid. After hearing both the parties, the learned Subordinate Judge, Kallakurichi found that the suit was undervalued and directed the plaintiffs to pay the deficit Court fee. Against that, the revision was filed. The learned Judge following decisions reported in Hardwari Lal v. Pohkar Mal and Ors. A.I.R. 1976 P & H 230 and Bhupinder Kamal and Anr. v. The New Delhi Municipal Committee, , held that where issue of determination of valuation of suit requires probe into the market value of the property in the suit, it need not be tried as a preliminary issue. So holding, the learned Judge set aside the order deciding the question relating to the valuation of Court fee and directed the trial Court to consider the issue relating !o valuation of Court fee along with other issues at the time of trial. This is the procedure that had been adopted by the learned Judge.
16. Learned counsel for the petitioner pointed out to the plaint and said that particulars of valuation show that the suit had not been valued with regard to the relief of delivery of possession and Court fee had been paid under Section 33 of the Court Fees Act for redemption of mortgage and Section 44 for mesne profits whereas he ought to have valued the suit under Section 30 which is suit for possession. Therefore, according to him, the Court fee ought to have been paid according to the market value of the property for the relief of recovery of possession. The non-payment of Court fee for the relief sought for is apparent from a mere reading of the plaint.
17. Any way, the narration of events shows that the question relating to Court fee has been raised not before the first hearing of the suit nor before evidence was recorded on the merits of the claim. The learned counsel for the petitioner repeatedly urged that there is no delay on his part because additional issues were framed only on 20.9.99 and the application had been filed on 22.9.99. But paragraph 3 of the counter filed by the respondent shows that even the question relating to the payment of Court fees itself was carried in the additional statement only after the trial had commenced and P.W.1’s evidence has been recorded. (Italics supplied). This is not contradicted. So it is clear that it is belated. The delay is not with reference to the date on which additional issues were framed. The delay is with reference to the stage at which it is raised in view of the provisions of Section 12(2) of the Act. I see no reason to interfere with the order of the Court below. The C.R.P. is dismissed with costs. CMP 5690 of 2001 is closed.