THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION No. 3872 OF 2011 ORDER : 1. The Civil Revision Petition is directed against the order dated 08.08.2011 in I.A. No.295 of 2011 in O.S. No.44 of 2008 on the file of the I Additional District Judge, Kurnool, whereunder and whereby the petition filed under Rule 11 (2) of the Andhra Pradesh Court Fees and Suits Valuation Act, 1956 (for short, ‘the Act, 1956’) to try issues 3 and 4 as preliminary issues before taking up of trial of other issues, was dismissed. 2. Heard both sides. 3. The petitioners herein are defendants, and the respondents herein are plaintiff, in the suit. For better appreciation of facts, the parties are hereinafter referred to as they are arrayed in the suit. 4. The plaintiffs filed the suit for partition and separate possession of their share and for cancellation of registered gift deed dated 23.2.2008 executed by late Venkateswarlu in favour of the defendants 1 and 3 and also the registered gift deed dated 17.7.2008 executed by the defendants 1 and 3 in favour of the second defendant. After framing of issues, at the instance of the defendants, additional issues viz. ‘Whether the valuation made and the court fee paid by the plaintiffs on the plaintiff are correct ? and whether the plaintiffs have to pay court fee under Section 34 (1) of the Suits Valuation Act ?, were framed. Now, the present application has been filed to try the issues relating to valuation and payment of court fee as preliminary issues, which was dismissed by the trial court holding that the suit is of the year 2008 and one of the plaintiffs is a senior citizen and issues with regard to payment of court fee can be decided in the suit itself. Challenging the same, the present revision petition is filed by the defendants. 5. Learned counsel for the petitioners/defendants contended that Section 11 (2) of the Act, 1956 is mandatory and whether proper court fee is paid or not, has to be decided in the first instance, and hence, he prays to set aside the impugned order. 6. On the other hand, the learned counsel for the respondents/ plaintiffs contended that the Section 11 (2) of the Act, 1956 is only a directory and that the said issues can be decided during trial of the suit itself and so the impugned order does not suffer from any infirmities so as to call for interference by this Court. 7. Section 11 (2) of the Act, 1956 reads thus: “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 Court’s 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 Court’s 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 cost of the suit.” A perusal of the above provision makes it clear that the question with regard to payment of court fee shall be heard and decided before hearing of the suit. 8. On this aspect, the learned counsel for the petitioners relied on a decision in A.V.Subramanyam & Ors. v. C.Venkataramanamma & ors.,[1] wherein it is held thus: “I cannot, therefore, agree with the argument of the learned counsel for the petitioners that the language of Section 11 Clause (2) is mandatory and that the lower Court would be acting without jurisdiction or doing something illegal in proceeding with the trial of the case without first deciding the question relating to the payment of proper court-fee. I read the language of Section 11 (2) directing that ‘all questions of payment of proper court-fee shall be decided before the hearing of the suit”, as merely directory and not mandatory.” 9. The learned counsel for the respondents relied on a decision in Satyanarayana v. Om Prarkash and others[2], wherein it is held thus: (para 26) “On an examination of the Section 11 of the Act it becomes clear that on the question of payment of court fee, the court has to examine at various stages and see that proper court fee is paid. Having regard to the limited scope given to the defendant, the trial of such an issue should not be allowed to impede the very progress of the trial of the suit. In that view of the matter, we are of the opinion that the words in Section 11 (2) of the Act “shall be heard and decided before the hearing of the suit” are only directory and not mandatory. The question whether certain provisions are mandatory or directory depends upon the object underlying the Act.” From the above decisions, it is clear that Section 11 (2) is not mandatory, but only directory. 10. The learned counsel for the petitioners relied on a decision in Subhadramma v. Palaksha Reddy & Ors[3]., wherein it is held thus: (para 11) “I should think therefore that the High Court should not entertain revision application on question of court-fee at the instance of a defendant when no question of jurisdiction of the court to try the suit is involved. Accordingly, the civil revision petition fails and it is dismissed. No costs.” 11. In another decision in Rathnavarmaraja v. Vimala, it is held thus: “The Court-fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action ….. We fail to appreciate what grievance the defendant can make by seeking to invoke the revisional jurisdiction of the High Court on the question whether the plaintiff has paid adequate court-fee on his plaint. Whether proper court-fee is paid on a plaint is primarily a question between the plaintiff and the State. How by an order relating to the adequacy of the court-fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate.” 12. Therefore, in view of the fact that the suit of the year 2008 and one of the parties to the suit is a senior citizen and that the chief affidavit of the plaintiff has already been filed, at this stage, it is not necessary to decide the issue of payment of court fee as a preliminary issue. Further more, there is no question of jurisdiction of the court to try the suit is involved so as to decide the issue of court fee as a preliminary issue. Considering these aspects, the trial Court rightly dismissed the petition and there are no grounds to interfere with the impugned order. 13. The Civil Revision Petition devoid of merit and is, accordingly, dismissed at the admission stage. No costs. --------------------- (K.C.Bhanu, J.) 14.09.2011 DRK THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION No. 3872 OF 2011 14.09.2011 THE HON’BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION No. 3872 OF 2011 DATED 14.09.2011 Between: P.Sridevi & another …Petitioners And Pakkiramma & others …Respondents [1] AIR 1981 AP 147 [2] 1989 (3) ALT 629 (D.B.) [3] AIR 1975 AP 165