WE-BUILD PVT LTD Vs. C KAMALESWARAN

JUDGEMENT

(1.) This revision arises from a suit for settlement of accounts. The plaintiff estimates that on settlement of accounts a sum of Rs. 1,25,000/- would be due to him. Accordingly he has paid a court-fee of Rs. 12,480/- on the plaint One of the contentions raised by the 1st defendant is that the suit has not been properly valued and that the court-fee paid is insufficient. On this contest the lower court raised the following question as the 2nd issue in the case:- "whether proper or sufficient court-fee has been paid by the plaintiff in respect of the several reliefs sought for in the plaint ?"

(2.) Though Section 12 (2) of the Kerala Court-fees and Suits Valuation Act. 1959 provides that all questions arising from pleas advanced by the defendant relating to proper valuation of the suit and sufficiency of the court-fee paid on the plaint 'shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim', the lower court did not do so in the instant case, for the reason (as stated bv that court) that neither party alerted the court of the said provision or of the requirement to hear and decide issue 2 as a preliminary issue. As a result the suit was tried and both sides adduced evidence on all the issues concerning merits of the claim. Evidence was closed on 17-3-1981. The case was posted to 26-3-1981 for arguments. On that day the plaintiff's counsel finished his arguments. The case, was adjourned to 3-41981 for arguments by the defendants' counsel. On that day the defendants' counsel appears to have pointed out that issue 2 should have been decided as a preliminary issue, and pressed for hearing and deciding it as a preliminary issue before deciding the other issues. Arguments were heard on issue 2 alone on 34-1981 and the case was adjourned to 7-4-1981 to answer that issue. At this stage the plaintiff filed a petition to delete issue 2 on the ground that the 1st defendant has not pressed for hearing issue 2 as a preliminary issue before evidence was recorded affecting him on the merits of the claim, and that he cannot after the recording of evidence affecting him on the merits of the claim invite a finding thereon. The lower court agreeing with the stand taken on behalf of the plaintiff as stated above deleted issue No. 2. In so doing the lower court relied on the decisions of this Court in Janaki Amma v. Krishnan (1978 Ker LT 463) and Sumithra v. Kamala Bair (ILR (1979) 2 Ker 124) : (AIR 1979 Ker 164) which clearly support the stand taken by the plaintiff.

(3.) Relying on A. V. Subrahmanyam v. C. Venkataramanamma (AIR 1981 Andh Pra 147) the learned counsel for the 1st defendant-revision-petitioner contended before the learned single Judge that the provision in Section 12 (2) is not mandatory and that non-compliance therewith will not affect the jurisdiction of the court to deal with a question arising from a defendant's plea relating to proper valuation of the suit and sufficiency of the court-fee even after recording of evidence affecting him on the merits of the claim. On behalf of the plaintiff-respondent his learned counsel argued before the learned single Judge that Section 12 (2) is mandatory and also contended that a defendant cannot be said to have been aggrieved by a finding entered that the suit has been properly valued or that the court-fee paid is sufficient, and that, therefore, a defendant cannot be said to be aggrieved also by the court deleting an issue relating to proper valuation of the suit and sufficiency of the court-fee paid. The learned single Judge inking the view that these are questions which require to be examined by a larger Bench has referred the case to a Division Bench.