1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED:30.06.2011 CORAM: THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN C.R.P(PD)(MD)No.1212 of 2011 & M.P(MD)NO.1 of 2011 Sakkubhai ..Petitioner/Petitioner/Defendant -Vs- 1.M.A.Abdul Hameed 2.M.A.Abdul Azeez 3.M.A.Mohammed Sadiq Zaffarullah..Respondents/ Respondents/ Plaintiffs PRAYER: Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order dated 01.12.2010 made in I.A.No.781 of 2010 in O.S.No.359 of 2008 on the file of the Court of the District Munsif,Thanjavur. For Petitioner :Ms.Maria Roseline For Respondents:Mr.P.Sesupalan Raja for M/s.Mahadevan Associates *** ORDER The defendant is before this Court challenging the order passed in an application filed by her to decide the issue of valuation and payment of Court Fee before recording the evidence in the suit. 2.Heard the Ms.J.Maria Roseline, learned Counsel appearing for the petitioner and Mr.P.Sesupalan Raja, learned Counsel appearing for the respondents/ plaintiffs. 3.The Respondents/Plaintiffs filed the suit for recovery of possession and for mandatory injunction directing the petitioner herein to remove the superstructure and hand over the suit property. The suit was valued and Court fee was paid based on the Kist assessment. However, the petitioner filed the written statement contending that proper Court Fee was not paid as the value of the adjacent property is about Rs.18,25,000/- which is as per the sale deed dated 28.05.2010. The said petition was dismissed by observing that it is a mixed question of fact and law and could be decided at the time of final disposal of the suit. The order passed therein is being challenged before this Court. 4.Ms.J.Maria Roseline, learned Counsel for the petitioner submitted that when an application filed under Section 12(2) of https://hcservices.ecourts.gov.in/hcservices/ 2 the Tamil Nadu Court Fees' and Suits Valuation Act, 1955, the Court has got no other option except to decide the matter with regard to the Court Fee and relied upon the judgment of this Court in V.R.Gopalakrishnan -Vs- Andiammal reported in 2002 (2) CTC 513 and the judgment in J.B.Joe Vilwarayar, President, Singikulam Barathakula Ikkiya Santhai, Valliyoor and two others reported in 2008-2-L.W.781. She further submitted that the petitioner examined V.A.O who gave evidence that the value of the property is more than Rs.18,00,000/-. Therefore, she seeks for setting aside the order and to return of the plaint for lack of jurisdiction. 5.On the other hand Mr.P.Sesupalan Raja, learned Counsel for the respondents/plaintiffs submitted that the suit was properly valued as the property remained as punja land. Based on the kist receipt, the Court fee was paid invoking Section 30(a) and Section 27(c) of Tamil Nadu Court Fees and Valuation Act. He submitted that there is a finding by the lower Court that the Court Fee paid based on the classification of the land is correct. That apart, he pointed out that the issue pertaining to the valuation and payment of Court fee is a mixed question of fact and law and it could be decided at the time of final disposal and trial Court passed the said order. He relied upon the judgment of this Court in P.Sekar -Vs- V.K.Vaiyapuri and two others reported in 2010-5-L.W.76. 6.It is seen that the suit is for declaration and recovery of possession of the property and also mandatory injunction. Based on the kist assessment the property was valued and Court fee was paid. Though the petitioner examined V.A.O who deposed that the value of the property is more than Rs.18,00,000/-, still he categorically stated that the Tahsildar Certificate Ex.R1 classifies the property comprised in Survey No.584.4 as punja land. Based on that the trial Court came to the conclusion that the valuation and payment of Court fee on the basis of such classification is correct. Having given such finding, the trial Court was inclined to frame the issue with regard to the valuation and payment of Court fee as an issue in that suit at the time of disposal. The later portion of the order though is correct in the earlier portion it came to a definite conclusion that the Court fee was properly paid. If such a finding is given, nothing remains to be decided at the time of final disposal of the case. In the judgment of this Court in P.Sekar -Vs- V.K.Vaiyapuri and two others reported in 2010-5-L.W.76, it has been held that if an issue involves mixed the question of fact in law it is desirable for the Court to pronounce the judgement on all the issue. It is also held that the issue relating to valuation is not a pure question of law and it cannot be decided as a preliminary issue. 7.In view of that the finding given by the trial Court that the suit has been valued properly based on the classification of the land as found in Ex.R1-Tahsildar Certificate is set aside. The later portion of the order alone is sustained i.e., the issue relating proper valuation and Court fee is to be decided at an issue at the time of final disposal. https://hcservices.ecourts.gov.in/hcservices/ 3 8. The suit has been filed in the year 2008 and the pleadings are completed. In view of that the trial Court is directed to dispose of the matter on or before 28.10.2011 and both the parties are directed to co-operate with the trial Court for early disposal. 9.With the above modification, the Civil Revision Petition is partly allowed. Consequently, connected Miscellaneous petition is closed. No costs. Sd/- Deputy Registrar(Accounts) /True Copy/ Assistant Registrar To The District Munsif, Thanjavur. Copy to:- The Section Officer, Judicial Department, Madurai Bench of Madras High Court, Madurai +One cc to Mr.P.Sesubalan, Advocate, SR.No.20982 +One cC to Mr.J.Maria Roseline, Advocate, SR.No.21278 gsr rl/5c – 12.7.2011 C.R.P(PD)(MD)No.1212 of 2011 https://hcservices.ecourts.gov.in/hcservices/