THE HON'BLE MR JUSTICE G.V.SEETHAPATHY CIVIL REVISION PETITION No:6046 OF 2009 ORDER: This Civil Revision Petition is directed against the order, dated 24.11.2009, in I.A.No.893 of 2009 in O.S.No.174 of 2007 on the file of the learned Senior Civil Judge, Bapatla, wherein the said application filed by the petitioner herein-2nd respondent under Section 11 (2) of the Andhra Pradesh Court Fee & Suit Valuation Act, 1956 (for brevity, ‘the Act’), seeking a direction to the plaintiff to pay the Court fee on the market value of her share in the property, i.e. Advalorum Court fee under Section 34 (1) of the Act, was dismissed. 2. Heard learned counsel for the petitioner. None appeared for the respondents. Perused the records. 3. 1st respondent herein filed the suit for partition of the plaint schedule properties into nine equal shares and for allotment of four such shares to the plaintiff. Defendants filed a written statement contesting the suit inter alia contending that the suit properties are self- acquired properties of the defendants and there was a prior partition of the same. 4. A perusal of the plaint would disclose that no averment is made to the effect that the plaintiff has been in joint possession of the suit property along with the defendants. In the plaint, it is averred that there has been exchange of notices between the parties prior to filing of the suit and that in respect of immovable properties, certain documents were created in favour of the defendants 2 to 4 by the deceased-Venkateswara Rao, father of the plaintiff, and the said documents are not binding on the plaintiff. It is further alleged that at the time of obsequies of the deceased, plaintiff demanded for partition and separate possession of her share but the defendants did not respond. Thus even by the date of filing of the suit, plaintiff was aware of the refusal of the defendants to effect any partition and also about their claim. In spite of the same, plaintiff has not chosen to make any averment in the plaint to the effect that she was in joint possession of the plaint schedule properties along with the defendants. Plaintiff, however, paid the said Court fee of Rs.200/- under Section 34 (2) of the Act, having valued her 4/9th share in the schedule properties at Rs.4,13,715/-. 5. Under Section 34 (2) of the Act, the question of paying fixed Court fee arises only when the plaintiff is stated to be in joint possession of the property. In the absence of such averment, plaintiff has to pay the Court fee under Section 34 (1) of the Act over 3/4th of the market value of the immovable property included in the plaintiff’s share. 6. Petitioner-2nd defendant filed I.A.No.893 of 2009 under Section 11 (2) of the Act, which states that whenever the defendant raises a question that the relief in the plaint is not properly valued and the Court fee paid is not sufficient, all such questions shall be heard and decided before the hearing of the suit as contemplated by Order XVIII CPC. The above provision further directs that 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. It further ordains that 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. Thus Section11 (2) of the Act not only enables the defendant to raise a question regarding the valuation of the relief and the payment of the Court fee but also ordains upon the Court to decide the said question even before hearing of the suit has commenced and stipulates certain consequences, which have to follow in the event of the failure of the plaintiff to pay the deficit Court fee within the time allotted and the plaint is also liable for rejection in such an event. 7. When the Act specifically prescribes a certain procedure, the same has to be followed, however, the trial Court by the impugned order dismissed the application observing that the said issue regarding the Court fee can be decided at a later stage during the course of trial. The trial Court further observed that the question of Court fee payable by the plaintiff is to be decided after deciding the genuineness or otherwise of the three documents, namely the sale deed, dated 03.07.2007; gift deed, dated 08.05.2005, and the Will, dated 25.02.2007. The plaintiff contends that the said documents are sham and nominal and they are not binding on her and notwithstanding the said documents, the properties are liable for partition and she is entitled for 4/9th share. The genuineness or otherwise of the said documents certainly arises for consideration during the course of the trial, but the question as to whether or not the Court fee paid is sufficient does not depend on the finding to be recorded, pertaining to the above said documents. When the application is filed under Section 11 (2) of the Act by the 2nd defendant questioning that the fixed Court fee paid under Section 34(1) of the Act is not proper and correct and the plaintiff is liable to pay the Court fee under the provisions of Section 34 (2) of the Act, the trial Court ought to have decided the said question even before hearing of the suit commences, in view of the specific provision contained under Section 11 (2) CPC. The impugned order, dismissing the application with the observation that the said question regarding the Court fee can be decided at a later stage during the course of the trial, is therefore held unsustainable in view of the bar contained in Section 11 (2) of the Act and the same is accordingly set aside. The trial Court is therefore directed to consider the question as to the sufficiency or otherwise of the Court fee paid as a preliminary issue and record a finding thereon in terms of Section 11 (2) of the Act. The trial Court shall record a finding on the above issue without in any way being influenced by any of the observations made hereinabove. 8. In the result, Civil Revision Petition is allowed. ______________________ G.V.SEETHAPATHY,J 15th November, 2011. Tsy