ORDER
M. Karpagavinayagam, J.
1. The subject-matter of challenge in this civil revision petition filed before this Court by the plaintiffs 2 to 6 (1st plaintiff since deceased), the petitioners herein, is the fair order and decretal order dated 12-10-1995 made by the learned District Munsif, Tambaram, in I. A. No. 1593 of 1994 in O. S. No. 1036 of 1993 upholding the preliminary objection raised by the first defendant, the respondent herein on finding that the suit filed by the plaintiffs for suit properties has not been properly valued, as the suit properties have to be valued as house sites.
2. “It is unfortunate that long years have been spent by the Court below on a combat between two parties on the question of court-fee leaving the real issues to be fought between them to come up leisurely. Two things have to be made clear. Courts should be anxious to grapple with the real issues and not spend their energies on peripheral ones. Secondly, the court-fee, if it seriously restricts the rights of a person to seek his remedies in Courts of justice, should be strictly construed. After all access to justice is the basis of the legal system. In that view, where there is a doubt, reasonable, of course, the benefit must go to him who says that the lesser court-fee alone be paid.”
3. The observation given above is made by the Apex Court in the decision in Lakshmi Ammal v. K. M. Madhavakrishnan, , while the similar issue had cropped up for consideration. In my considered opinion, the above observation would apply in all fours in the present case.
4. The petitioners arc the plaintiffs 2 to 6. The plaintiffs filed a suit in O. S. No. 1685 of 1989 on 30-8-1989 for declaration of title to the suit properties and for recovery of possession, on the file of the Disirict Munsifs Court, Poonamallee. Later on, it was transferred to District Munsifs Court, Chengalpattu, where it was numbered as O.S. No. 145 of 1991 and later to District Munsifs Court. Tambaram and numbered as O. S. No. 1036 of 1993.
5. The case of the plaintiffs is that the suit properties are Nanja lands in old Paimash Nos. 586, 557 and 558 corresponding to new Survey Nos. 70, 85. 71/1 and 71/2 measuring in all 1.16 acres in Shrotriam Adambakkam village, that the said properties were originally purchased by the father of the plaintiffs Ponnuranga Naicker from Dharmalinga Naicker, the second defendant, that after the said Ponnuranga Naicker died, the plaintiffs moved to other places, that as absentee landlords, the plaintiffs could not cultivate the suit lands profitably, even though they were engaging some local people for doing the cultivation operations, and that taking advantage of the absence of the plaintiffs, the first defendant trespassed into the plaintiffs’ lands and enclosed the same by putting up fencing. It is further mentioned in the plaint that Dharmalinga Naicker, the second defendant earlier filed a suit in O. S. No. 779 of 1975 on the file of the District Munsifs Court, Poonamallee against the first defendant in respect of some portions in the same survey numbers and the same was already disposed of.
6. According to the first defendant through his written statement, the earlier suit in O. S. No. 779 of 1975 filed by the second defendant Dharmalinga Naicker for declaration of his title to the suit properties and for mandatory injunction, was dismissed and, therefore, the present plaintiffs have been set up by the said Dharmalinga Naicker to file this suit. However, it is further stated in the written statement that the first defendant has nothing to do with paimash No. 586 or paimash No. 557, that he had purchased the lands bearing paimash No. 558 measuring 0.6.0 and paimash No. 620 measuring 0.12.0 and also a port ion in paimash No. 558/1 measuring 1.45 cents from A. S. Perumal Naicker and that ever since the date of his purchase he has been in possession and enjoyment of the entire property. In para 18 of the written statement he also mentioned that the disputed properties have already been laid out into house site plots and as such, the suit has been improperly valued, as if they were Nanja lands. This written statement was filed on 28-6-1991.
7. After hearing the counsel for the parties, the following two issues have been framed :–
(1) Whether the plaintiff is entitled to the relief of declaration and whether the plaintiff is entitled to the relief of possession ?
(2) To what relief is the plaintiff entitled ?
8. When the suit was ripe for trial, the first defendant filed I.A. No. 1593 of 1994 for framing a preliminary issue regarding valuation of court-fee and to decide the said issue on merits before taking up the ease for recording evidence.
9. This was contested by the plaintiffs by filing a counter and producing the relevant records to show that the suit properties are still ryotwari lands and not house sites and that when a similar issue had been raised In the earlier suit, the High Court in C. R. P. No. 2017 of 1982 by the order dated 9-8-1983 directed the trial Court to proceed to dispose of the suit by treating the suit properties as lands and decide the suit on merits on the other issues after taking the plaint on file.
10. After hearing the counsel for the
parties, and on perusal of the documents, the learned District Munsif. Tambaram, rejected the counter argument advanced by the counsel for the plaintiffs and held that the suit was not properly valued, as the suit properties shall be treated as house sites.
11. Mr. M. S. Subramanian, the counsel for the petitioners and Mr. T. V. Ramanujam, learned Senior Counsel for the respondent would reiterate their respective pleas made before trial Court, strenuously and vehemently.
12. As I indicated earlier, on a careful scrutiny of” the records and the impugned order, I am of the view that the trial Court
without following the guidelines given by this Court as well as the Apex Court, spent its entire energy on peripheral issue without showing any anxiety to grapple with the real issue raised in the suit.
13. Mr. T. V. Ramanujam, learned Senior Counsel, like a preliminary issue raised before the trial Court with reference to the valuation of the court-fee, has chosen to raise another preliminary objection before this Court as well stating that the civil revision petition is not sustainable in law, since the scope of the revisional jurisdiction of this Court under Section 115 of C.P.C. is so limited. In support of his plea, he would cite the following authorities :–
(1) K. Balasubramania v. N. M. Sambandamoorthy, ;
(2) Maitreyee Banerjee v. Prabir Kumar, :
(3) Bhojraj Kunwarji Oil Mill and Ginning Factory v. Yograjsinha, ;
(4) Manick Chandra Nandy v. Debdas Nandy, ;
(5) Johri Singh v. Sukh Pal Singh, ; and
(6) Masjid Kacha Tank, Nahan v. Tuffall Mohammed, .
14. As pointed out by the Apex Court, the High Court in its power of revision cannot easily interfere with the impugned order, especially when there is no jurisdictional error involved. Section 115. C.P.C. applies to matters of jurisdiction alone, the irregular exercise or non-exercise of it or the Illegal assumption of it, and if a subordinate Court had jurisdiction to make the order it has made and has not acted in breach of any provision of law or committed any error of procedure which is material, and may have affected the ultimate decision, the High Court has no power to interfere, however, profoundly it may differ from the conclusions of that Court on questions of fact or law.
15. The limits of revisional jurisdiction are prescribed and its boundaries defined by Section 115 of the Code of Civil Procedure. Under that section revisional jurisdiction is to be exercised by the High Court in a case in which no appeal lies to it from the decision of a subordinate Court if it appears to it that the subordinate Court has exercised a jurisdiction not vested in it by law or has failed to exercise a jurisdiction vested in it by law or
has acted in the exercise of its jurisdiction illegally or with material irregularity.
16. In view of these guidelines, it is clear that the High Court has jurisdiction to interfere with the order of the Subordinate Courts only in the following contingencies :–
(i) If the lower Court had no jurisdiction to make the order it has made; and
(ii) It had acted in breach of any provision of law or committed any error of procedure which was material and may have affected the ultimate decision.
17. Keeping in view of the above commands, when we go into the records, I cannot but come to the conclusion that the impugned order would suffer from very grave illegality, which would satisfy both of the conditions mentioned above.
18. Before going into the main core of the matter, it would be relevant to refer some factual aspects.
19. The present suit filed by the plaintiffs is for declaration of title and recovery of possession in respect of Nanja lands in Paimash Nos. 586. 557 and 558 corresponding to new Survey Nos. 70, 85, 71/1 and 71/ 2 respectively. According to the written statement filed by the first defendant, the respondent herein, in respect of the very same properties, the second defendant filed another suit in O. S. No. 779 of 1975 and the same was dismissed on 28-4-1988 and this suit has been filed by the plaintiffs, who have been set up by him.
20. In this context, it is to be noted that even in the said suit in respect of the very same properties, the defendant in the said suit filed a petition under Section 12(2) of the Act raising preliminary objection that the suit properties were house sites and as such, the suit was not maintainable, since the same has not been properly valued. Though the trial Court and the lower Appellate Court held in favour of the defendant, ultimately this Court by the order dated 9-8-1983 in C. R. P. No. 2017 of 1982 found that the suit had been properly valued for the purpose of court-fees and Jurisdiction and the trial Court was directed to proceed with the suit. The first defendant, the respondent herein was, the party in the revision. When a similar objection was raised by him before this Court, this Court rejected his contention and directed the trial Court to treat the suit properties as lands. In the said order also, the Paimash
Nos. 557. 558 and 620 were mentioned.
21. Suit being the situation, I am not able to understand as to how the trial Court has given scant respect to the said order of this Court. I would rather feel that the trial Court has virtually ignored the said order merely by invoking Section 11 of C. P. C. and by observing that the prevailing situation could have been different from the existing situation on the date of the High Court’s order. I would rather with the anguish say that this biased attitude shown by the concerned Judicial Officer towards the defendant, despite the order of the High Court, reflects his judicial impropriety, especially when the first defendant, the respondent herein was a party to the said order.
22. Let me now go into the materials placed before the trial Court by the parties concerned, in order to decide the issue raised.
23. In the plaint in paragraphs 5 to 9, it is specifically mentioned that the suit properties are Nanja lands. In the Memo of Calculation, it is mentioned that the court-fee paid for the market value of the suit properties, that is, 30 limes the total kist under Section 25(a) of the Tamil Nadu Court-Fees Act. In the Schedule of Properties also, the details about the lands, paimash numbers, extent and boundaries have been given.
24. Even in the written statement, it is admitted by the first defendant that the suit properties were the lands, that he had nothing to do with paimash No. 586 or paimash No. 557 but he had purchased the lands bearing paimash Nos. 558 and 620 and that those disputed properties have been laid out into house site plots and sanctions were obtained from the appropriate authorities as house sites. Though this reference about the court-fee valuation was incidentally referred to in para 18 of the written statement filed on 28-6-1991, the defendant did not make any attempt to request the Court immediately, after filing of the written statement to decide the preliminary issue with reference to the valuation of the court-fee.
25. The trial Court framed two issues, as indicated earlier. Even at the time of framing of the issues, the first defendant did not choose to raise this preliminary objection. Ultimately, he filed a petition before the trial Court, when the suit was ripe for trial, on 20-8-1994 in I. A. No. 1593 of 1994 to decide about the preliminary objection regarding
the valuation of the court-fee.
26. Under Section 12(2) of the Tamil Nadu Court-fees and Suits Valuation Act, any defendant through his written statement can raise objection with reference to the improper valuation of the court-lee before the first hearing of the suit and under Section 12(3), the defendant after framing of the issues through the written statement can make such a plea requesting to decide the issue before evidence is recorded.
27. In such an event, if the Court decides
that the subject-matter of the suit has not been properly valued, the Court shall fix the date before which plaint shall be amended and the deficit court-fee shall be paid and if the same has not been made within, the time allowed, the plaint shall be rejected.
28. In the present case, it is seen from the petition filed before the trial Court that the petition was filed under Order 14, Rule 5 of C.P.C. This would relate to the powers of the Court to amend and strike out the issues. However, let us not go deep into this aspect, inasmuch as the powers have been conferred to the trial Court to decide the issue regarding the valuation of the court-fees before evidence is recorded.
29. In the light of the said situation, we shall consider whether the materials placed before the trial Court have been considered, in order to decide the preliminary objection raised by the first defendant. In other words, if it is held that the materials placed before the trial Court show that there is a proper valuation of court-fee made as under Section 7(2)(a) and not under Section 7(2)(g), then the trial Court cannot uphold the preliminary objection raised by the first defendant by losing its jurisdiction. Therefore, it goes to the root of the matter.
30. On behalf of the first defendant, Exs.
A1 to Al 6 were marked and on the side of the plaintiffs, Exs. B1 to 134 were marked. Though ultimately, the trial Court upheld the objection, in so many paragraphs in the impugned order, it accepted the case of the plaintiffs. The relevant observation is as follows :–[Vernacular matter omitted–Ed.)
31. The above observation would show
that the trial Court found that they were ryotwari lands and subsequently, the portions other than the suit, properties have been converted into house sites. In this context, it shall be noticed that the kist receipts
Exs. B1 to B3 were marked to show that the suit properties were treated in the Revenue records as lands. While referring those kist receipts, the trial Court would make the following observation ;–
32. But, having held as above, the trial Court in the last paragraph would observe that the plaintiffs did not prove that the character of the lands had not changed before filing of the suit.
33. In this connection, it is appropriate to
refer to some of the decisions in which the guidelines have been given to decide the said issue :
(1) Sarangapani Iyengar, S. v. The Assistant Commissioner, (1988) 101 Mad LW 152;
(2) Sorna Pandi Nadar v. Sivasubramania
Nadar, 1976 TLNJ 69 :
(3) T. K. M. Alagappa Chetty v. Saminathan Chetty, AIR 1933 Madras 367(1);
(4) Jugaraj v. Carborandum Universal Ltd., (1968) 81 Mad LW 502;
(5) G. Krishnamurthy v. Saragapani, 1996 TLNJ 87;
(6) Rathnavarma Raja v. Smt. Vimla, .
34. The following is the gist of the principles enunciated by the various Courts :–
The Court-fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. Whether proper court-fee is paid on a plaint is primarily a question between the plaintiff and the State. How by an order relating to the adequacy of the court-fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate. The anxiety of the Legislature to collect court-fee due from the litigant is manifest from the detailed provisions contained in the Act. But, those provisions do not arm the defendant with a weapon of technicality to obstruct the progress of the suit. The preliminary issue regarding court-fee is essential and the matter is between the Court and the suitor. The finding rendered by the Court cannot be said to have caused any prejudice to the defendant. When the suit property is classified in the Revenue records as agricultural land and it is assessed to revenue kist, the market value of the property of any land which is assessed to the Revenue records will be reckoned only under
Section 7(2)(a) of the Court-fees and Suits Valuation Act. When the lands have been registered as agricultural lands in the Revenue records, it cannot be said that the lands ceased to be agricultural lands, merely because the lands were kept vacant.”
35. This Court in 1976 TLNJ 69 (supra), while answering the question, whether the evaluation made by the plaintiff for the purpose of court-fee and the reckoning of the market value under Section 7(2)(a) of the Act is correct or not, held that the Courts should not substitute or interpolate in the text of the statute and they being creatures of the various statutes who decide as to, how and in what manner the land has to be classified, has to necessarily look into the Revenue records, sinee it is the duty of the State to classify the particular land after making enquiry.
36. In the present ease, the exhibits marked on behalf of the first defendant cannot be said to be Revenue records, as they merely show that there were various house plots. On the other hand, Exs. B1 to B3, though obtained in the years 1989 and 1991, would show that the suit properties were treated as ryotwari lands even during the pendency of the suit. The trial Court cannot reject those documents on the basis that they were obtained subsequent to the suit. The dates mentioned in those kist receipts would not in any way help the first defendant. As a matter of fact, those kist receipts would clearly show that the suit properties, even before filing of the application raising the preliminary objection, were continuously treated as lands in the Revenue records. It is not the case of the first defendant that those records are not genuine ones.
37. In yet another decision reported in (1968) 81 Mad LW 502 (supra), the following observation has been made :–
“In a case of this kind, wherein the property has been characterised in the Revenue records as ryotwari land, it would be difficult for a Court of law to conjecture upon the nature of such land by taking into consideration the probabilities of its user in the future or its potentialities. In fact, Mr. Damodara Rao would say that it is highly Improbable that the land in question would ever remain as ryotwari land In view of the fact that it is situated in the midst of factories and particularly it is an annexure to the vast factory already worked by the respondent. It might
be so, but, in my view, it would be difficult to take into consideration such potential use or probability while adjudging the issue whether the plaintiff has properly evaluated the suit and land for the purpose of instituting an action for possession. There is a specific provision under the Madras Court-fees and Suits Valuation Act enabling the plaintiff to evaluate the suit ryotwari land at 30 times the survey assessment of the land. This the plaintiff has done. The accepted form of law is that the special excludes the general. Even the opening parenthesis of Section 7(1) ‘save as otherwise provided’ provides a key to the interpretation of the section. In the instant case, such a provision has been made under Section 7(2)(a). I am, therefore, unable to accept the contention of the learned counsel for the petitioners that the of her clauses, viz., Section 7(2)(g) of the Act can be pressed into service for the purpose of ascertainment of the court-fee payable by the plaintiff.”
38. The above observation, in my view, would certainly help the case of the plaintiffs, inasmuch as there are Revenue records, which would show that the suit properties are treated as lands, whereas the documents filed by the first defendant cannot be considered to be the Revenue records. Furthermore, on going through the impugned order it is clear that the plaintiffs wanted further opportunity to examine the witnesses to prove the documents and other aspects, but the trial Court turned down the said request, as it is not necessary.
39. In this context, it is also relevant to note that the learned District Munsif on his own finding observed that except the suit lands, other lands were converted into house sites. When such being the situation, despite the production of the kist receipts being the Revenue records to show that the kist is collected for the suit properties even after the filing of the suit, there is no reason as to why the trial Court allowed the application of the first defendant by upholding his objection. So long as there is no modification or variation in the classification of the suit lands from Nanja into ‘house sites’ and in the absence of the material produced by the first defendant for establishing the same, the court-fee shall be payable only as kist paying lands. The fact that the lands in the neighbouring area have been converted into house sites has already been considered by this Court In C. R. P. No. 2017 of 1982 wherein it
was held that the suit properties shall be treated as lands. The trial Court, having found from the kist receipts produced by the plaintiffs that the lands continued to be the ryotwari lands cannot hold that the suit has not been properly valued merely on the ground that the neighbouring lands have been converted into house sites.
40. As already indicated, this question has to be necessarily decided only on the basis of the Revenue records. The kist receipts produced by the plaintiffs, the petitioners herein would clearly show that the suit properties are still treated as lands. Without taking into consideration these kist receipts and the earlier order of this Court, the trial Court has jumped to the conclusion on the hypothetical assumption, that the situation prevailing at the time when this Court passed an order would have been different at present. There is no basis to arrive at such a conclusion when there are Revenue records to show that even during the pendency of the suit, the suit properties are treated as lands.
41. In AIR 1933 Mad 367(1) (supra), it is held that when a wrong principle is applied to the levying of court-fees, by the trial Court, this Court would definitely interfere in revision.
42. The above discussion of mine would make it clear that the principle on which the trial Court has proceeded regarding the levy of court-fees in this ease is quite wrong. The valuation as made in the plaint is perfectly tenable in law as the suit property is classified in the Revenue records and it is assessed to revenue kist.
43. In the result, the revision is allowed with costs setting aside the order of the trial Court. The trial Court is directed to proceed with and dispose of the suit on merits on the other issues.