G ANUSUYA Vs. AMIRTHAVALLI

JUDGEMENT

(1.) THE plaintiff is the revision petitioner. THE suit was filed for a partition and separate possession of plaintiff's half share in the suit properties. THE defendants filed a written statement contending that the court fee paid under Section 37(2) of the Act 14/55 is defective and deficient and court fee based on real value of the suit property should be directed to be paid on advolerum basis. Thus as per the mandatory provision of Section 12 of the Act, the issue regarding court fee should be tried preliminarily by framing necessary issues. Accepting the plea of the defendants, the learned District Judge, Nagapattinam framed 7 issues including the issue regarding court fee and posted the suit to 16.11.2004 for deciding the preliminary issue of court fee. Aggrieved by the same, the plaintiff has preferred this Revision.

(2.) THE point for consideration is whether the issue relating to valuation of the property for the purpose of court fee should be decided as a preliminarily issue? Under Order 14 Rule 2 CPC only those issues of law relating to jurisdiction of the court or the bar tot he suit created by any law alone should be tried as a preliminarily issue. In support of the said contention, the learned counsel for the revision petitioner pressed into service a judgment of this Court in A. Manivannan and others Vs. Sivaraj and others, reported in (2001) 3 MLJ 403, wherein this Court held as follows:-"In the case on hand, the petitioner had really not stated how the valuation is incorrect and in any event, it had been raised at a belated stage as per Sec.12(2) of the Court Fees Act. So he cannot pray for trial of this issue as a preliminary issue. Order 14. Rule 2, CPC gives the court the power to deal with only two kinds of issues as preliminary issues and that too only if they are issues of law. THE issue relating to valuation is not one such and on this ground also the order is not liable to be revised.".