SAROJA AMMAL Vs. DURAISAMY

JUDGEMENT

(1.) THE petitioner in this civil revision petition is the plaintiff in unnumbered O.S.SR.No.111 of 1997 on the file of the learned District Munsif cum Judicial Magistrate, Tirukazhukundram. THE petitioner filed the above suit for a preliminary decree of partition of the suit properties into nine shares and allot one share to the plaintiff according to metes and bounds and considering good and bad soil and for other reliefs. THE plaintiff for the purpose of Court fee, valued the suit at Rs.20,555.55 and paid the court fee of Rs.200/- under Section 37(2) of the Tamil Nadu Court Fees and Suits Valuation Act. THE said plaint was rejected by the learned District Munsif cum Judicial Magistrate by order dated 23.7.97 on the ground that the petitioner should pay the Court fee under Section 37(1) of the Act instead of Section 37(2). Having so found, the learned Judge granted seven days time to the petitioner to pay the deficit Court fee. Aggrieved by the said order, the present civil revision petition has been filed.

(2.) MR.V.Raghavachari, learned counsel for the petitioner submitted that the order of the learned District Munsif in directing the petitioner/plaintiff to pay Court fee under Section 37(1) of the Act instead of accepting the plaint on the basis of the valuation and court fee paid by the petitioner/plaintiff under Section 37(2) of the Act is not correct. The learned counsel submitted that the reason adduced by the learned District Munsif for directing the petitioner/plaintiff-to pay the court fee under Section 37(1) of the Act is unsustainable since it is the specific case of the plaintiff in paragraph 7 of the plaint that she is and deemed to be in joint possession of the suit items and the said averment has to be decided only after the trial and the plaint itself cannot be rejected on the ground that the averments in the plaint do not reflect the joint possession being pleaded by the plaintiff.