Decided the question of payment of court fee on the relief as a preliminary issue is affirmed.
Citation
CDJ 2012 MHC 4914
S.N.S.Sukumaran and others vs C.Thangamuthu and others
Head note
Constitution of India, Article 227 and Article 254 – Civil Procedure Code, Order 7 Rule 11, Order 14 Rule 2, and Section 151 – Tamil Nadu Court fees and Suits Valuation Act, Section 12 (2), Section 18, Section 19, Section 20 and Section 25(d) – Karnataka Court Fees and Suits Valuation Act, 1958, Section 11 (2) – Civil practice Rules, Rule 3 (6) – Revision petitions filed against the order given by various lower courts – Different sets of decisions were given – In one set divisions it was held, the issue of court fee and valuation cannot be decided as a preliminary issue – In another set, it was held that the court fee and valuation can be decided as a preliminary issue – Question of Law is whether payment of court fee on the plaint being a Jurisdictional issue has to be decided as a preliminary case.
(Paras 1, 4 and 6).
Constitution of India – Article 254 (1) and (2) – when there is a inconsistency between the law of the state and law of the parliament in respect of matter in the concurrent list, state law would be void.
(Para 26).
Civil Procedure Code – Order 14 Rule 2 – Issues of law and fact – whether issues both of law and fact arise in the same suit and the court is of opinion that the case may be disposed on the issues of law only – settlement of issues of fact until after the issues of Law have been determined.
(Para 18).
Tamil Nadu Court Fees and Suits valuation Act 1955 – Section 12 (2) – Court to hear and decide these questions before evidence is recorded affecting such defendant on the merits of the claim – Defendant has the right to take an objection of court fee – whenever a case comes for appeal ourt can consider the correctness of Order passed by lower court – Questions as to value for determining the Jurisdiction of courts shall be heard and decided before evidence is recorded – ‘merits of claim’ refers to matters which arise for determination in the suit.
(Para 20).
Karnataka Court Fees and Suit Valuation Act 1958 – Section 11(2) – If the court decides that the subject matter of the suit has not been properly valued, the court shall fix a date before the plaint amended and the deficit fee shall be paid – it mandates that the court fee and Jurisdiction has to be decided before evidence is recorded.
(Para 29).
Court held – where the provisions of Central Act and State Act in the concurrent list are fully inconsistent, the Central Act will prevail – State law can be protected by obtaining assent of the President under Article 254 (2) of the constitution – State Court Fees Act requires the court to hear and decide the questions before evidence is recorded – Evidence has been recorded in the present case, the procedure of Section 12(2) of the state act cannot be adopted – Exercise of right by the defendant must be bonafide and not with an ulterior motive of dragging the suit on this issue – court shall not grant unnecessary adjournments if the court finds that the defendant is not diligent with the court – court shall proceed the suit on merits and decide all issues including the valuation of the suit and court fee together – Contrary view taken by the single judges cannot stand as good law – Decision that the trial court ought to have allowed the application and decided the question of payment of court fee on the relief as a preliminary issue is affirmed.
(Paras 26 and 31).
Cases Referred:
1. E. Pushpalatha vs. C. Shanmughasundaram, 2003 (1) C.T.C. 87
2. A.Chinnaraj vs. Saroja Ammal, 2008 (1) M.L.J. 75
3. Solaiammal vs. Rajarathinam, 2003 (4) C.T.C. 268
4. Laljivora vs. Srividya, 2001 (2) C.T.C. 411 and V.R. Gopalakrishnan vs. Andiammal, 2002 (2) C.T.C. 513
5. Laljivora vs. Srividya reported in 2001 (2) C.T.C. 411
6. Abdul Suban vs. Syed Tharu Hussain reported in 2006 (5) C.T.C. 341
7. U.P. Electricity Supply Co.Ltd. Vs. R.K.Shukla reported in AIR 1970 237
8. Sri Manicklal Verma vs. Smt. Jamanadevi reported in AIR 2002 Karnataka 332
9. Umarabba v. Pathunni and Ors.1981(2)Kar.LJ.97
10. Thimmaiah vs. Sreenivasa, ILR (1999) 3 Kant.3660 = MANU/KA/0105/1995
11. Umakanth M. v. M. Malathi and Ors. 1998 (2) Kant. LJ. 220.
Overruled:
1. E. Pushpalatha vs. C. Shanmughasundaram 2003 (1)CTC 87 (CDJ 2002 MHC 350)
2. Chinnaraj vs. Saroja Ammal 2007 (5) CTC 432 : 2008 (1) MLJ 5 (CDJ 2007 MHC 4369)
Partly Overruled:
Solaiammal vs. Rajarathinam, 2003 (4) C.T.C. 268
Affirmed:
Laljivora vs. Srividya, 2001 (2) C.T.C. 411
V.R. Gopalakrishnan vs. Andiammal, 2002 (2) C.T.C. 513
Comparative Citations:
2012 (5) CTC 705, 2012 (5) LW 197,
(Paras 1, 4 and 6).
Constitution of India – Article 254 (1) and (2) – when there is a inconsistency between the law of the state and law of the parliament in respect of matter in the concurrent list, state law would be void.
(Para 26).
Civil Procedure Code – Order 14 Rule 2 – Issues of law and fact – whether issues both of law and fact arise in the same suit and the court is of opinion that the case may be disposed on the issues of law only – settlement of issues of fact until after the issues of Law have been determined.
(Para 18).
Tamil Nadu Court Fees and Suits valuation Act 1955 – Section 12 (2) – Court to hear and decide these questions before evidence is recorded affecting such defendant on the merits of the claim – Defendant has the right to take an objection of court fee – whenever a case comes for appeal ourt can consider the correctness of Order passed by lower court – Questions as to value for determining the Jurisdiction of courts shall be heard and decided before evidence is recorded – ‘merits of claim’ refers to matters which arise for determination in the suit.
(Para 20).
Karnataka Court Fees and Suit Valuation Act 1958 – Section 11(2) – If the court decides that the subject matter of the suit has not been properly valued, the court shall fix a date before the plaint amended and the deficit fee shall be paid – it mandates that the court fee and Jurisdiction has to be decided before evidence is recorded.
(Para 29).
Court held – where the provisions of Central Act and State Act in the concurrent list are fully inconsistent, the Central Act will prevail – State law can be protected by obtaining assent of the President under Article 254 (2) of the constitution – State Court Fees Act requires the court to hear and decide the questions before evidence is recorded – Evidence has been recorded in the present case, the procedure of Section 12(2) of the state act cannot be adopted – Exercise of right by the defendant must be bonafide and not with an ulterior motive of dragging the suit on this issue – court shall not grant unnecessary adjournments if the court finds that the defendant is not diligent with the court – court shall proceed the suit on merits and decide all issues including the valuation of the suit and court fee together – Contrary view taken by the single judges cannot stand as good law – Decision that the trial court ought to have allowed the application and decided the question of payment of court fee on the relief as a preliminary issue is affirmed.
(Paras 26 and 31).
Cases Referred:
1. E. Pushpalatha vs. C. Shanmughasundaram, 2003 (1) C.T.C. 87
2. A.Chinnaraj vs. Saroja Ammal, 2008 (1) M.L.J. 75
3. Solaiammal vs. Rajarathinam, 2003 (4) C.T.C. 268
4. Laljivora vs. Srividya, 2001 (2) C.T.C. 411 and V.R. Gopalakrishnan vs. Andiammal, 2002 (2) C.T.C. 513
5. Laljivora vs. Srividya reported in 2001 (2) C.T.C. 411
6. Abdul Suban vs. Syed Tharu Hussain reported in 2006 (5) C.T.C. 341
7. U.P. Electricity Supply Co.Ltd. Vs. R.K.Shukla reported in AIR 1970 237
8. Sri Manicklal Verma vs. Smt. Jamanadevi reported in AIR 2002 Karnataka 332
9. Umarabba v. Pathunni and Ors.1981(2)Kar.LJ.97
10. Thimmaiah vs. Sreenivasa, ILR (1999) 3 Kant.3660 = MANU/KA/0105/1995
11. Umakanth M. v. M. Malathi and Ors. 1998 (2) Kant. LJ. 220.
Overruled:
1. E. Pushpalatha vs. C. Shanmughasundaram 2003 (1)CTC 87 (CDJ 2002 MHC 350)
2. Chinnaraj vs. Saroja Ammal 2007 (5) CTC 432 : 2008 (1) MLJ 5 (CDJ 2007 MHC 4369)
Partly Overruled:
Solaiammal vs. Rajarathinam, 2003 (4) C.T.C. 268
Affirmed:
Laljivora vs. Srividya, 2001 (2) C.T.C. 411
V.R. Gopalakrishnan vs. Andiammal, 2002 (2) C.T.C. 513
Comparative Citations:
2012 (5) CTC 705, 2012 (5) LW 197,
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