Dismissed

M.Vivekanandan v. S.Velusamy

Madras HC2 Dec 2014A/5174/2013

Case brief

AI extract

What is this about?

The applicant 1st defendant sought to reject the plaint under Order VII Rule 11 CPC claiming lack of cause of action and defective court fee. The single-judge High Court held that averments disclosed a cause of action and issues regarding court fee must be decided during trial, not for rejection of the plaint.

What did the court decide?

Application for rejection of plaint under Order VII Rule 11 CPC was dismissed.

M.Vivekanandan Vs S.Velusamy — Property and Title | Madras HC (2014)

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Application No.5174 of 2013 in

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C.S.No.288 of 2013

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R.SUBBIAH, J.,

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This application has been filed by the applicant/1^st defendant under XIV Rule 8 of Original Side Rules read with Order VII Rule 11(a) & (c) of C.P.C., seeking to reject the plaint.

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2.The applicant herein is the 1^st defendant, the 1^st respondent herein is the plaintiff and the 2^nd respondent herein is the 2^nd defendant in the suit. For the sake of convenience, the parties are referred to as per their ranking in the suit.

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3.Before dealing with the above application for rejection of the plaint under Order VII Rule 11 of C.P.C., it would be appropriate to extract the averments made in the plaint. The averments made in the plaint, in nutshell, are as follows_

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3(a)On 12.02.1990, the plaintiff-S.Velusamy purchased a vacant house site ad-measuring about 5678 sq.ft comprised in Survey No.8/3, Kolathur Village, Perambur – Purasaiwalkam Taluk, Chennai-600 009, more fully described in the Schedule-I, from one K.Lokaiah, L.Pandurangan, L.Seetharaman, L.Bhanumathi and L.Sasikala, for a valid consideration of Rs.1,10,000/- by registered sale deed in Document No.510 of 1990 on the

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file of the Sembiam Sub-Registrar Office, Chennai.

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3(b)On 13.02.1990, the plaintiff purchased another vacant house site measuring 5879 sq.ft comprised in the same Survey No.8/3, Kolathur Village, Perambur, Purasaiwalkam Taluk from the same vendor Mr.K.Lokaiah, who got the marketable title from his brother K.Chitty Babu Naidu by virtue of the registered sale deed for valid consideration of Rs.1,10,000/- in Document No.533/1990 on the file of the Sembiam SubRegistrar Office, Chennai. Thus, the plaintiff is the bone fide purchaser of a total extent of 11,557 sq.ft vacant house site in Survey No.8/3, which comprises the suit schedules I & II, and he is in possession and enjoyment of the same. As the purchased properties are vacant house sites, the plaintiff did not make any attempt to fence or to raise the compound wall. Since the plaintiff was employed in Qatar, he did not take any step immediately to put up construction of a house.

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3(c)While so, the 1^st defendant claims to have purchased a land measuring to an extent of 4708 sq.ft in Survey No.8/2 at No.65, Kolathur Village, Perambur – Purasaiwalkam Taluk, vide sale deed dated 17.04.1995, registered as Document No.2317/1995 on the file of the Sub-Registrar, Sembiam, from one V.R.Sundar, registered Power of Attorney of his principals A.V.Nagalingam, N.Kajabai, N.Vijaya, N.Dhanalakshmi, N.Govindaraj, N.Santhakumar and N.Kamalanathan, who are legal heirs of one N.Pushpammal. The 1^st defendant also claims to have purchased the land measuring to an extent of 5722 sq.ft in Survey No.8/2 situated at

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No.65, Kolathur Village, Perambur-Purasaiwalkam Taluk, vide Sale deed dated 24.11.1995, Document No.6923/1995 registered on the file of the SubRegistrar, Sembiam, from the same vendor viz, V.R.Sundar.

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3(d)The vendor of the suit properties and the 1^st defendant's land are different and they also fall in different subdivision of the same survey number as it is clear from the registered sale deeds of the plaintiff and 1^st defendant's herein respectively. The plaintiff properties fall in Survey No.8/3 of Kolathur Village and the 1^st defendant's properties is in Survey No.8/2 of the same Kolathur Village, Perambur – Purasaiwalkam Taluk.

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3(e)The plaintiff was employed in Qatar and he returned to India in August-2011 permanently. With an idea of constructing a residential house in the suit properties, the plaintiff visited the suit properties in September-2011 and found that the entire suit properties belonging to him was fenced by a compound wall by the 1^st defendant, who is the owner of the adjacent land, annexing the properties of the plaintiff with his land. Therefore, the plaintiff requested the 1^st defendant to remove the compound wall, but the 1^st defendant failed to respond. When the plaintiff attempted to measure the land in October-2011 with the help of a surveyor, the 1^st defendant with the aid of henchmen thwarted the same. Hence, the plaintiff issued a legal notice to the 1^st defendant on 26.11.2011, calling upon the 1^st defendant to remove the compound wall raised by the 1^st defendant covering the land of the plaintiff purchased through the sale deeds in Document Nos.510 & 533 /1990 registered on the file of the Sub-Registrar, Sembiam

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and to allow the plaintiff to continue to possess and enjoy the suit properties without the interference of the 1^st defendant, within 7 days from the date of receipt of the notice. But, the 1^st defendant sent a reply dated 20.12.2010 claiming right over the property in S.No.8/2 only and not in S.No.8/3, which is the suit properties, alleging that the plaintiff has purchased the vacant house site at the southern side of the property of the 1^st defendant. The 1^st defendant raised objection for the plaintiff to survey his own vacant site.

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3(f)The act of the 1^st defendant in encroaching upon the plaintiff's properties and encircling the same by putting up a compound wall is unlawful and without any means of right, title or interest. The 1^st defendant attempts to deprive the plaintiff of his valuable land. Hence, the plaintiff has filed the present suit for a judgment and decree to declare that the plaintiff is the owner of the suit properties and consequently, to direct the 1^st defendant to deliver the possession of the suit properties to the plaintiff.

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4.On appearance, the 1^st defendant, through his Power Agent, has taken out the above application seeking to reject the plaint. In the affidavit filed in support of the application for rejection of the plaint, it has been stated as follows_

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The suit has been filed by the plaintiff with a malicious motive to grab the property of the 1^st defendant. The 1^st defendant had purchased the land measuring to an extent of 4708 sq.ft with a superstructure thereon, comprised in Survey No.8/2, New Survey No.135, Block No.2, at Kolathur

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Village (Harbour Colony), Purasawalkam – Perambur Taluk, under a Sale Deed dated 17.04.1995, but registered on 24.04.1995, bearing Document No.2317 of 1995 and another house site measuring to an extent of 5722 sq.ft comprised in the very same survey number, adjacent to the above said property at the Western side, under the Sale Deed dated 24.11.1995, bearing Document No.6923 of 1995, and both the Sale Deeds were registered on the file of the Sub-Registrar, Sembiam. The 1^st defendant is the absolute owner of the said two properties and has also obtained a patta for the above said properties in his name and he has been regularly paying the electricity consumption charges, property tax, land tax and other revenue levies to the authorities concerned. The plaintiff is found to have purchased the suit properties comprised in Survey No.8/3 at the Southern side of the properties purchased by the 1^st defendant. The present suit has been filed by the plaintiff with a malicious motive to grab the properties of the 1^st defendant comprised in Survey No.8/2, New Survey No.135, Block No.2. Absolutely, there is no cause of action for the plaintiff to maintain the present suit. Further, suit properties have been valued at Rs.56 lakhs and the plaintiff has paid the Court fee of Rs.59,525/- under Section 25(d) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 read with High Court Fee Rules. Whereas the guideline value as per the norms maintained by the Government of Tamil Nadu with respect to the suit properties is worked out at Rs.3,46,71,000/- at the rate of Rs.3,000/- per sq.ft. and the market value of the suit properties, as it is prevailing in the locality, is about 4.50 crores.

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Even for Rs.4.50 crores, so much of extent of house site namely 11,557 sq.feet the total extent of the suit properties cannot be purchased and as such, the plaintiff has suppressed the real value of the suit properties and after having undervalued the same, the plaintiff has paid only lesser Court fee of Rs.59,525/- and the plaintiff is bound to value the suit properties at Rs.4.50 crores and pay the appropriate court fee of Rs.4,53,525/- and unless proper court fee, as mandated under the provisions of Section 25(d) of the Act with reference to the suit properties, is paid, the plaintiff cannot maintain the suit and the plaint is liable to be rejected. Thus, the 1^st defendant prayed for rejection of the plaint.

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5.Now, it is the submission of the learned counsel for the applicant/1^st defendant that even as per the averments in Para 6 of the plaint, the plaintiff is in possession and enjoyment of the vacant site in Survey No.8/3. Similarly, the plaintiff is not disputing the title of the 1^st defendant in respect of the land in S.No.8/2. Hence, absolutely no dispute is involved in the suit for adjudication. When that being so, there is no need to grant the prayer of the plaintiff to declare that he is the owner of the suit subject property and consequently, there is no need to direct the 1^st defendant to deliver the suit property. Absolutely, there is no cause of action for the plaintiff to maintain the suit as against the first defendant. In support of his contention, the learned counsel for the applicant/1^st defendant has also relied upon the judgment reported in 2012(4) CTC 308 (The Church of Christ

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Charitable Trust & Educational Charitable Society Vs. Ponniamman

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Educational Trust), wherein it has been held as follows_

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“It is clear from the above that where the plaint does not disclose a cause of action, the relief claimed is undervalued and not corrected within the time allowed by the Court, insufficiently stamped and not rectified within the time fixed by the Court, barred by any law, failed to enclose the required copies and the plaintiff fail to comply with the provisions of Rule 9, the Court has no other option except to reject the same. A reading of the above provision also makes it clear that power under Order VII Rule 11 of the Code can be exercised at any stage of the sit either before registering the plaint or after the issuance of summons to the defendants or at any time before the conclusion of the trial. This position was explained by this Court in Saleem Bhai & Ors. Vs. State of Maharashtra and others [2003(1) SCC 557], in which, while considering Order u Rule 11 of the Code, it was held as under:

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“A perusal of Order 7, Rule 11, CPC makes it clear that the relevant facts which need to be looked into for deciding an application thereunder are the averments in the plaint. The trial Court can exercise the power under Order u, Rule 11, CPC at any stage of the Suit – before registering the plaint or after issuing summons to the defendant

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at any time before the conclusion of the trial. For the purpose of deciding an Application under clauses (a) & (d) of Rule 11 of Order 7, CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7, Rule 11, CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial Court.....”

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Further, the learned counsel for the applicant/1^st defendant submitted that the suit properties have been undervalued at Rs.56 lakhs and the plaintiff has paid the Court fee of only Rs.59,525/- under Section 25(d) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 read with High Court Fee Rules, in spite of the fact that the suit property is worth about more than Rs.3,46,71,000/-. In this regard, the learned counsel for the applicant/1^st defendant, by inviting the attention of this Court to Section 25(a) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955, submitted that where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the property. Under Section 25(d) of the said Act, whether the subject-matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint. In the instant case, the

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plaintiff has valued the Court fee by undervaluing the suit properties under Section 25(d) of the said Act, instead of valuing and paying the Court fee under Section 25(a) of the said Act. Since the suit properties were undervalued, the suit is liable to be rejected under Order VII Rule 11(c) of C.P.C. In this regard, the learned counsel for the applicant/1^st defendant has also relied upon the judgment reported in AIR 1979 SC 989 (Meenakshisundaram Vs. Venkatachalam) and submitted that the plaintiff cannot arbitrarily and deliberately undervalue the relief. For the same proposition, the learned counsel for the applicant/1^st defendant relied upon the judgment reported in (1974) 1 SCR 322 (Sharmasher Singh Vs. Rajinder Prashad).

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6.The learned counsel for the applicant/1^st defendant further submitted that if the plaint does not disclose any cause of action and relief claimed is under valued, this Court can direct the plaintiff to pay the deficit court fee within a specified time and if the amount is not paid within the time limit, the Court can reject the plaint.

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7.Per contra, the learned counsel for the plaintiff/1^st respondent herein submitted that it is incorrect to state that the averments in the plaint do not constitute a cause of action. In the plaint it has been specifically stated that the 1^st defendant, who is the owner of the adjacent land comprised in S.No.8/2, has encroached upon the property of the plaintiff in S.No.8/3 and

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raised a compound wall encircling the plaintiff's property. The learned counsel for the plaintiff further submitted that the 1^st defendant has put up the compound wall encircling the plaintiff's property, without any means, right, title or interest. Hence, the suit has been filed for declaration and delivery of possession. The averments made in the plaint clearly make out a case as against the defendants. Since there is cause of action to file the suit, the plaint cannot be rejected on the ground of non-disclosure of any cause of action.

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8.The learned counsel for the plaintiff, by inviting the attention of this Court to Order 49 Rule 3 of CPC submitted that the Order 49 Rule 3 of CPC deals with the provisions which will not be applicable to the chartered High Court in the exercise of its ordinary or extraordinary original civil jurisdiction. As per Order 49 Rule 3 of C.P.C., clauses (b) and (c) of Order VII Rule 11(1) C.P.C. will not apply to any Chartered High Court in the exercise of its ordinary or extraordinary original civil jurisdiction. In the instant case, the 1^st defendant is seeking for rejection of the plaint under Order 7 Rule 11(c) of CPC on the ground that the subject property was under valued, which is not applicable to the Chartered High Court. Further, the learned counsel for the plaintiff, by inviting the attention of this Court to Order 2 Rule 3 of O.S.Rules, submitted that if the suit is under valued and the stamp affixed to the plaint is insufficient, the Registry may ask the plaintiff to rectify the same within a time frame. But, in the instant case, the Registry has not raised any

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objection with regard to Court fee. Further more, in the instant case Court fee was paid only under Section 25(a) and not under Section 25(d) of Tamil Nadu Court Fees and Valuation Act. In this regard, the learned counsel for the plaintiff invited the attention of this Court to the memo of valuation given under the plaint and submitted that the suit was valued only under Section 25(a) of Tamil Nadu Court Fees and Valuation Act. Thus, the learned counsel for the plaintiff submitted that no case has been made out by the 1^st defendant to reject the plaint. Thus, he prayed for dismissal of the application.

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9.In view of the above submissions made by the learned counsel on either side, the following questions fall for consideration in this case_

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(1)Whether the averments made in the

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plaint constitute any cause of action?

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rejected on the ground of undervaluation of the

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suit property?

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10-1 Question No.1 :- With regard to the cause of action, it is the

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submission of the learned counsel for the 1^st defendant that even as per the avement made in para 6 of the plaint, the plaintiff is in possession and enjoyment of the vacant site in Survey No.8/3; similarly, the plaintiff is not disputing the title of the 1^st defendant in respect of the land in S.No.8/2 and

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hence, absolutely no dispute is involved in the suit for adjudication; under such circumstances, there is no need to grant the prayer of the plaintiff to declare that he is the owner of the suit subject property and consequently, there is no need to direct the 1^st defendant to deliver the suit property; and hence, absolutely there is no cause of action for the plaintiff to maintain the suit.

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10-2. But, a entire reading of the averments in the plaint would show

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that it is the specific case of the plaintiff that when the plaintiff was out country, the 1^st defendant, who is the owner of the adjacent land in S.No.8/2, has encroached the property of the plaintiff in S.No.8/3 and raised a compound wall encircling the land of the plaintiff. Now, the 1^st defendant is attempting to sell the entire property to third parties, as if the entire property belongs to the 1^st defendant. Therefore, in my considered opinion, a reading of the averments in the plaint wholly would clearly make out a cause of action to maintain the suit as against the defendants. Therefore, I am not inclined to accept the submission made by the learned counsel for the 1^st defendant that the plaint averments do not constitute any cause of action.

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11-1. Question No.2 :- It is the next fold of submission of the learned

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counsel of the 1^st defendant that the suit property was undervalued and that inspite of the fact that the suit properties are worth more than Rs.3,46,71,000/-, the plaintiff has valued the suit properties at Rs.56 lakhs

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and paid only a sum of Rs.59,525/- under Section 25(d) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 read with High Court Feed rules. It is further submitted by the learned counsel for the 1^st defendant that the market value of the suit properties, as it is prevailing in the locality, is about Rs.4.50 crores and hence, the plaintiff ought to have paid Rs.4,53,525/- as Court fee. Further more, according to the learned counsel for the 1^st defendant, the Court fee was paid by the plaintiff under Section 25(d) of the Act, instead of Section 25(a) of the Act. Therefore, according to the learned counsel for the 1^st defendant, the plaint is liable to be rejected under Order 7 Rule 11(c) of CPC.

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11-2. But, on perusal of the memo of valuation of the property in the plaint, I find that the suit properties were valued at Rs.56 lakh under Section 25(a) of the Tamil Nadu Court Fees and Valuation Act and the plaintiff has paid a sum of Rs.59,525/- as Court fee. According to the learned counsel appearing for the first defendant, since proper Court Fee was not paid, the plaint is liable to be rejected under Order VII Rule 11 of C.P.C., whereas as contended by the learned counsel appearing for the plaintiffs, Order 49 Rule 3 of C.P.C. deals about what are the provisions that will not apply to the Chartered High Court in exercise of its ordinary or extraordinary original civil jurisdiction. Order 49 Rule 3 C.P.C. reads as follows:-

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" 3. Application of rules :- The following rules shall not apply to any Chartered High Court in the exercise of its ordinary

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or extraordinary original civil jurisdiction, namely:-

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(1) Rule 10 and Rule 11, clauses (b) and (c), or Order VII;

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(2) Rule 3 of Order X:

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(3) Rule 2 of Order XVI;

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(4) Rules 5, 6, 8, 9, 10, 11, 13, 14, 15 and 16 (so far as

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relates to the manner of taking evidence) of Order XVIII;

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(5) Rules 1 to 8 of Order XX; and

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(6) Rule 7 of Order XXXIII (so far as relates to the making of a memorandum); and Rule 35 of Order XLI shall not apply to any such High Court in the exercise of its appellate jurisdiction."

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Order 49 Rule 3 (1) C.P.C. says that Rule 10 and Rule 11, clauses (b) and (c) of Order VII shall not apply to the Chartered High Court. Therefore, nonpayment of proper Court Fee cannot be a ground to reject the plaint at the threshold stage.

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11-3. The learned counsel appearing for the 1^st defendant, by relying upon Order 2 Rule 3 of O.S.Rules, submitted that if no sufficient Court Fee is affixed on the plaint, the suit may be dismissed. But, on a reading of Order 2 Rule 3 of O.S.Rules, I find that during the hearing of the suit, if it appears to the Court that the suit is undervalued or that the stamp affixed to the plaint is insufficient, the Court may require the plaintiff to make good the deficiency within a time fixed by it and in default dismiss the suit. Therefore, whether

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the stamp affixed on the plaint is sufficient or not could be decided only during the hearing of the suit by framing appropriate issues. But, the same will not be a ground for rejection of the plaint.

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11-4. In this regard, a reference could be placed in the judgment reported in 2005 (5) CTC 444 - Minor Subha and another v. Ramu and other s, wherein, it has been held as follows:-

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"6. In the case on hand, the petitioners herein have alleged that they are co-owners and they are in joint possession of the suit property. Applying the said judgments mentioned supra, this Court is of the prima facie view that the Court fee paid by the petitioners under Section 37(2) of the Act is right and the impugned order is set aside. However, it is open to the trial Court to frame necessary issues as to whether the petitioners herein are liable to pay stamp duty under Section 37(2) or 37(1) of the Act and decide the same along with the other issues while disposing of the suit on merits. The CRP is disposed of on the above terms."

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In Civil Appeal No.1264 of 1978 - Lakshmi Ammal v. Madhavakrishnan (K.N.) and ors. , the Hon'ble Apex Court has held as

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follows:-

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" Leave granted. It is unfortunate that long years have

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been spent by the courts below on a combat between two parties on the question of court fee leaving the real issues to be fought between them to come up leisurely. Two things have to be made clear. Courts should be anxious to grapple with the real issues and not spend their energies on peripheral A ones. Secondly, court fee, if it seriously restricts the rights

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of a person to seek his remedies in courts of justice, should be strictly construed. After all access to justice is the basis of the legal system. In that view, where there is a doubt, reasonable of course, the benefit must go to him who says that the lesser court fee alone be paid.

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In this particular case there is hardly any difficulty in holding that the plaintiff in paragraph 14 of the plaint has clearly alleged that she is in joint possession and is seeking partition and separate possession of her half share in the suit properties as heir of deceased, Paramayee. Obviously, the court fee that is payable is as she has claimed, namely under sec.37 (2) which corresponds to Art. 17 (b) of the Central Act, which is the predecessor legislation on the subject. We allow the appeal and send the case back to the trial court and direct that court to proceed with the suit expeditiously. We make it clear that our decision on the question of court fee does not have any implications on the merits including the validity or otherwise of the Will. No costs."

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In the decision reported in (1980) 2 Supreme Court Cases 247 - Neelavathi and others v. N.Natarajan and others , the Hon'ble Apex Court has also held as follows:-

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" 6. ... It is well settled law that the question of Court

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Fee must be considered in the light of the allegation made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on merits. All the material allegations contained in the plaint should be construed and taken as a whole vide S.Rm. Ar. Sp. Sathappa Chettiar v. S.Rm.Ar.Rm.Ramanathan Chettiar - 1958 SCR 1021 at pp.1031-32...."

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From a reading of the above judgments, I am of the opinion that dispute with regard to Court fee has to be considered only based on the allegations made in the plaint. If the defendant disputes the Court fee, the said issue can be decided only during the course of trial by framing necessary issues. Therefore, undervaluation of the suit property can not be a ground for rejection of the plaint. Hence, absolutely no case has been made out by the 1^st defendant to reject the plaint.

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For the foregoing reason, the application is liable to be dismissed and accordingly, the same is dismissed.

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Index : Yes / No Internet : Yes / No

ssv

02.12.2014

R.SUBBIAH, J.,