S. RAJU GRAMANI Vs. SRINIVASA GRAMANI

JUDGEMENT

(1.) THIS Civil Revision Petition is against the order of the learned first Assistant City Civil Judge, appointing a Commissioner directing him to find out the market value of the suit property in O.S. No. 1853 of 1955 on the file of this Court. The suit is for eviction of the defendant from the property. The defendant filed his written statement, but in the written statement he did not raise the question of inadequacy of the Court -fee paid for the suit. After the written statement having been filed, in a petition supported by an affidavit, the defendant raised an issue with regard to the proper Court -fee for the suit. After hearing the parties, the learned First Assistant City Civil Judge appointed a Commissioner to find out the market value of the suit property. In this Civil Revision Petition objection is taken by the plaintiff that the defendant, not having pleaded in his written statement that the Court -fee paid was inadequate, was precluded from raising the plea with regard to inadequacy of the Court -fee paid in a petition supported by an affidavit.

(2.) MR . Jagadisa Ayyar, appearing on behalf of the petitioner -plaintiff, relies upon the language of Section 12, Clause (2) of Madras Act XIV of 1955. That section is to the effect that any defendant may, by his written statement filed before the first hearing of the suit, or before evidence is recorded on the merits of the claim, plead that the subject -matter of the suit has not been properly valued, or that the fee paid is not sufficient. The word used is " plead " and the learned Counsel for the petitioner contends that a petition supported by an affidavit cannot be a " pleading " and that it is not covered by the language of that section. But in my opinion it is too much of a straining of the term " plead " to say that the course adopted by the Respondent is not " pleading ". It is true that an opportunity was available to the defendant to raise the question of adequacy of Court -fee paid, when the written statement was filed, but that opportunity was not availed of. The question is whether that opportunity not having been availed of, the defendant would be precluded from pleading at a later stage as provided for in the section relied on that the Court -fee paid by the plaintiff is inadequate. If the written statement alone is to be considered pleading, then certainly the language used in Section 12, Clause (2) of Madras Act XIV of 1955, that:

(3.) THE learned First Assistant City Civil Judge has done the right thing in having appointed a Commissioner to find out the market value of the suit property. No doubt, advantage or disadvantage might ensue from the amendment of valuation and Court -fee in the plaint, but that advantage or disadvantage is for both the parties and depends largely upon how exactly the suit turns out to be in the course of trial and hearing. Therefore, I am inclined to agree with the decision of the learned First Assistant City Civil Judge, and dismiss this Civil Revision Petition. I do not think that I need order costs in this petition.