A V SUBRAHMANYAM Vs. C VENKATARAMANAMMA

JUDGEMENT

(1.) The present petitioners in this revision are the defendants in O. S. No. 42 of 1974 on the file of the Subordinate Judges Court, Rajahmundry. That suit was filed by one Srirama Murthy, now deceased He had executed a registered settlement deed dated 26th August, 1973 with respect to about 7 1/2 acres of wet land situated in Jegurupadu village, Rajahmundry Taluk, in favour of one of his sons by name Atchuta Venkata Subrahmanyam, the first petitioner herein. Subsequently, he filed the aforesaid suit. O. S. 42 of 1974 on the file of the Subordinate Judge, Rajahmundry for cancellation of that settlement deed on the ground that it had been obtained by fraud, coercion, etc., Srirama Murthy, who started this litigation did not live to see the end of it which, in any case, is out of sight. Some time after he had filed the suit, he had died, bequeathing the litigation and his property by a registered will in favour of the present respondents to this revision petition. After the death of Srirama Murthy, these respondents were brought on record as his legal representatives, not before litigating the issue up to this Court. After the present respondents had thus been brought on record as the legal representatives of late Srirama Murthy, they filed an application. I. A. 1280/79, to amend the plaint so as to include in addition to the relief of cancellation of the aforesaid settlement deed, relief of possession of the property covered by the settlement deed from the present petitioners on the ground that the present petitioners had trespassed into the land some time after the suit was filed by Srirama Murthy and before he died. That application for amendment was allowed by the Court below on 24-9-79. Thereafter, the defendants in the suit who are the present petitioners took a plea that the plaintiff must pay additional court-fee on the new relief of possession which he had prayed for through the aforesaid petition in I. A. 1280/79 to amend the plaint. The legal representatives of Srirama Murthy had naturally resisted that application and contended that according to the provisions of the Court-fees Act, they need not pay any additional court-fee on the relief of possession because they said that relief of possession was merely ancillary and consequential to the main relief of cancellation of the settlement-deed. An additional issue was accordingly framed on 29-1-80 -- whether plaintiffs are liable to pay additional court-fee on the relief of possession. When the learned Subordinate Judge took up this six year-old suit for trial, the defendants filed another application in I. A. 1175/80 contending that the aforesaid additional issue relating to court-fee should be tried first before trial of the case was begun under Order 18 of the Code of Civil Procedure. This application of the defendants was dismissed by the lower Court by its order dated 8-10-80 on the ground that the legislative mandate in Section 11 (2) of the Court-fees Act would not apply to a Court of unlimited jurisdiction like the Subordinate Judges Court. It is against this order of the learned Subordinate Judge, the present C. R. P. is filed.

(2.) Mr. C.P. Sarathy, the learned Counsel for the petitioners contended that when the defendants had raised the plea that the plaintiffs were liable to pay additional court-fee on the subsequent relief of possession and the plaintiffs had denied their liability to pay any additional court-fee, an issue had arisen relating to the liability of the plaintiffs to pay court-fee and the Court having framed an appropriate issue regarding the plaintiffs liability to pay court-fee on this relief went wrong in not trying that issue as a preliminary issue, preliminary to the trial of the main case, as contemplated by Section 11, Sub-section (2) of the Andhra Pradesh Court-fees and Suits Valuation Act, 1956 (the Act, for short). On the other hand, Mr. Ramachandra Rao argued for the plaintiffs that Section 11, Sub-section (2) of the Act would not apply to a case before a Court of unlimited jurisdiction. According to him, the question of proper court-fee need not be tried as a preliminary issue, because whatever amount of court-fee it may be that is payable, a Sub Court being a Court of unlimited jurisdiction would not be without power to try the case.

(3.) The question raised, is of general importance and depends for its answer on the language and intendment of Section 11 of the Act. It is, therefore, necessary to read that Section in full. "Section 11: Decision as to proper fee:-- (1) (a) In every suit the Court shall, before ordering the plaint to be registered decide on the allegations contained in the plaint and on the materials furnished by the plaintiff the proper fee payable thereon. (2) Any defendant may plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before the hearing of the suit as contemplated by Order XVIII in the First Schedule to the Code of Civil Procedure, 1908 (Central Act V of 1908). If the Court decides that the subject-matter of the suit is not properly valued or that the fee paid is not sufficient, the Court shall fix a date before which the subject-matter of the suit shall be valued in accordance with the Courts decision and the deficit fee shall be paid. If within the time allowed, the subject-matter of the suit is not valued in accordance with the Courts decision or if the deficit fee is not paid, the plaint shall be rejected and the Court shall pass such order as it deems just regarding costs of the suit. (3) (a) A Court of Appeal, in which an appeal is filed, may, either of its own motion or on the application of any party, consider the correctness of any order passed by the lower Court regarding the fee payable on the plaint or written statement or in any other proceeding in the lower Court and determine the proper fee payable thereon. EXPLANATION: The power exercisable by a Court of Appeal under this clause shall be exercisable even if the appeal relates only to a part of the subject-matter of the suit. (b) If the Court of Appeal decides that the fee paid in the lower Court is not sufficient, the Court shall require the party liable to pay the deficit fee within such time as may be fixed by it. (c) If the deficit fee is not paid within the time fixed and the default is in respect of a relief which has been dismissed by the lower Court and which the appellant seeks in appeal, the appeal shall be dismissed, but if the default is in respect of a relief which has been decreed by the lower Court, the deficit fee shall be recoverable as if it were an arrear of land revenue. (d) If the fee paid in the lower Court is in excess of the proper fee, the Court shall direct the refund of the excess to the party who is entitled to it. (4) Any question relating to the value for the purpose of determining the jurisdiction of Courts shall be heard and decided before the hearing of the suit as contemplated by Order XVIII in the First Schedule to the Code of Civil Procedure, 1908 (Central Act V of 1908).