IN THE HIGHCOURT OF JUDICATURE AT MADRAS DATED : 27 .04.2011 CORAM: THE HONOURABLE MR.JUSTICE K.VENKATARAMAN CIVIL REVISION PETITION No.495 OF 2009 T.Chandrakala ... Petitioner VS. 1.Palaniammal 2.Uma Loganathan 3.S.Senthilnathan 4.G.Ramamurthy 5.Sridhara Saravana Sundar .. Respondents PRAYER: Petition filed under Article 227 of the Constitution of India, to set aside the fair and final order made in I.A.No.665 of 2007 in O.S.No.453 of 2005 on the file of the Additional District-cum- Sessions Judge (FTC No.1), Coimbatore dated 20.01.2009. For Petitioners : Mr.K.M.Vijayan, senior counsel for Mr.Baskar For Respondents : Mr.K.Subramanian, senior counsel for Mr.M.Mohammed Safi O R D E R The plaintiff in O.S.No.453 of 2005 on the file of the learned Additional District-cum-Sessions Judge, F.T.C.No.1, Coimbatore, aggrieved over the order dated 20.01.2009 made in I.A.No.665 of 2007, allowing the application filed by the respondents for appointment of Advocate Commissioner, to make inspection of the suit property for the purpose of ascertaining the value of the building with the assistance of Civil Engineer and to file a report to that effect, filed the present revision. 2.The petitioner herein has originally filed the suit in O.S.No.1707 of 2000 on the file of the Subordinate Court, Coimbatore for declaration of her title over the suit property and for permanent injunction, restraining the defendants thereon, some of them are the respondents herein from interfering with her peaceful possession and enjoyment of the suit property. 3.In the said suit, she has taken out an application in I.A.No.624 of 2007, for amendment of the plaint incorporating a prayer for recovery of possession. The respondents, in the said suit, have filed an application in I.A.No.665 of 2007, for appointment of Advocate Commissioner for the purpose set out earlier. The said application was allowed by the Court below. As stated already, the present revision is directed against the said order. 4.The facts, which are not disputed, are that originally the application filed by the respondents in I.A.No.665 of 2007 was dismissed by the Court below on 07.11.2007. The respondents herein filed Civil Revision Petition in C.R.P.Nos.3780 and 3854 of 2007 (The other revision is against the order, dismissing the application in I.A.No.668 of 2007, which is the subject matter in C.R.P.No.496 of 2009). This Court, by an order dated 18.12.2007, has passed the following order: This Court considered the argument of the counsel for both sides. The Court below failed to note that even for the relief of declaration, the value of the property has to be ascertained, hence, the reasons assigned by the Court below is untenable and the said order dated 07.11.2007 passed by it is set aside, the matter is remanded back to the trial Court. The trial Court is directed to dispose of all the I.A.Nos.624, 665 and 668 of 2007 simultaneously on merits and in accordance with law, after hearing the parties concerned, within period of two months from the date of receipt of copy of this order. After that, the trial Court, again dismissed the application in I.A.No.665 of 2007 along with the application in I.A.No.668 of 2007. Further, the trial Court has allowed the application preferred by the petitioner for amendment of the pleadings made in I.A.No.624 of 2007. 5.In the meanwhile, the petitioner filed two revisions under Article 227 of the Constitution of India, before this Court, viz., C.R.P.Nos.830 and 831 of 2008, for early disposal of the suits in O.S.No.453 of 2005 filed by the petitioner and O.S.No.712 of 2007 filed by the respondents along with few others. This Court, by an order dated 29.02.2008, without ordering notice to the respondents, had directed the Court below to dispose of the suits at the earliest. 6.The orders made in I.A.Nos.665 and 668 of 2007, were again challenged along with the order made in I.A.No.624 of 2007, before this Court in C.R.P.Nos.1184 to 1186 of 2008. This Court, on 31.10.2008, has passed the following order: 17.After going through the entire documents and after hearing arguments of the learned Senior counsel on either side, I am of the considered view that the trial Court has flouted the order of this Court dated 18.12.2007, made in C.R.P.No.3780 and 3854 of 2007. This Court on 18.12.2007 held that the trial Court is wrong in its failure to note that even for the declaration, the value of the property is to be ascertained and therefore, set aside the earlier orders passed on 07.11.2007 in I.A.No.665 of 2007 and I.A.No.668 of 2007. This Court further directed the trial Court to dispose of all the three applications i.e. I.A.Nos.624, 665 and 668 of 2007 simultaneously on merits (emphasis supplied by me) and in accordance with law within a period of two months. for better appreciation, the operative portion of the order dated 18.12.2007 is extracted below: 4.This Court considered the argument of the Counsel for both sides. The Court below failed to note that even for the relief of declaration, the value of the property has to be ascertained, hence, the reasons assigned by the Court below is untenable and the said order dated 07.11.2007 passed by it is set aside, the matter is remanded back to the trial Court. The trial Court is directed to dispose of all the I.A.Nos.624, 665 and 668 of 2007 simultaneously on merits and in accordance with law, after hearing the parties concerned, within period of two months from the date of receipt of copy of this order. 18.But, a perusal of the order passed by the trial Court on 19.02.2008, after remand, will show that the trial Court has again stuck to its earlier decision of not deciding I.A.No.665 of 2007 and I.A.No.668 of 2007 on merits along with I.A.No.624 of 2007. Instead, the trial Court disposed of only the I.a.No.624 of 2007, on merits and dismissed the other two I.As. namely, I.A.No.665 of 2006 and 668 of 2006 for the time being by observing that they are premature and could not be decided at this juncture and the same could be considered later on, after the plaint is amended and additional written statement is filed by the defendants. This counduct of the trial Court in my considered view is contumacious in nature and it is inexplicable how a Subordinate Judge could flout an order of this Court by cocking a snook at the order of this Court dated 18.12.2007. I find the conduct of the trial Judge is unacceptable and it amounts to showing intransigent attitude to the order of the High Court which should be nipped in the bud. I am at my wits end, worrying about the progress of the case before such Presiding Officer who has the adaucity and obdurance to disregard the direction given by this Court on 18.12.2007. 19.Therefore, without going into the merits of the order passed by the trial Court on 19.02.2008, I am setting aside the same on sole ground that the same is not consonance with the orders of this Court made on 18.12.2007 and in fact, the trial Judge has shown scant respect to that order and flippantly deal with the matter after remand. Hence, I am allowing the C.R.P.No.1184 to 1186 of 2008 and remanding the matter to the trial Court to decide all the three applications on merits and in accordance with law and as per the direction given by this Court dated 18.12.2007 in C.R.P.Nos.3780 and 3854 of 2007. In the same revisions, the orders made in C.R.P.Nos.830 and 831 of 2008, an order directing the trial Court to dispose of the suits referred to above, were recalled. 7.Later, the applications in I.A.Nos.665 and 668 of 2007 were taken by the Court below and the said applications have been allowed. Civil Revision petition No.495 of 2009 was filed by the petitioner, questioning the order made in I.A.No.665 of 2007. 8.The above background of the case would indicate that the respondents herein filed the application in I.A.No.665 of 2007 for appointment of an Advocate Commissioner to value the suit property. Their claim is that the property has been undervalued by the petitioner. However, it is contended by the learned Senior counsel appearing for the petitioner that the valuation of the suit and payment of proper Court fees is primarily between Court and State and the defendant in a suit cannot stall the proceedings by raising question of valuation and payment of Court fee. That apart, he has contended that once the amendment is allowed, it relates back to the date of filing of the suit and hence, there cannot be any valuation of the suit property on the present value. 9.On the other hand, it is contended by the learned Senior counsel appearing for the respondents that once the petitioner has moved the application for amendment of the plaint incorporating a prayer for recovery of possession, a proper Court fee has to be payable. 10.While considering the said submissions made by the learned Senior counsel appearing for the petitioner and the Senior counsel appearing for the respondent, I am of the considered view that even the case of the petitioner before the Court in C.R.P.No.3780 of 2007 was that the question of payment of Court Fee will arise only if the application for amendment is allowed and carried out. Para 3 of the said judgment made thereunder is extracted hereunder: Mr.T.R.Rajagopalan, learned Senior counsel appearing for the respondent submitted that the respondent has filed the application for amendment in I.A.No.624 of 2007 seeking additional relief of recovery of possession which is pending and the Court below has rightly dismissed the said two applications by pointing out that unless the said application for amendment is allowed, amendment is carried out, consequently issues relating to stamp duty on the market value of the property is framed, the relief sought for in the said I.A.Nos.665 and 668 of 2007 are unnecessary and prematured and prayed for dismissal of the revisions petitions. However, in the said decision, this Court has held that even for the relief of declaration, the value of the property has to be ascertained. The order made thereunder has been extracted above. The petitioner has not challenged those orders before the Hon'ble Apex Court by filing an S.L.P. Hence, the said order has become final. 12.That apart, the petitioner has filed the application for amendment of the pleadings incorporating a prayer for recovery of possession and the same has been allowed by the trial Court. The same was also held in favour of the petitioner in the revision filed by the respondents. while so, the petitioner undoubtedly has to pay the stamp duty for the relief of recovery of possession. In view of the same, there cannot be any grievance for the petitioner for appointment of an Advocate Commissioner. 13.In AIR 1987 SC 2085 (Smt.Tara Devi V. Sri Thakur Radha Krishna Maharaj through Sebaits Chandeshwar Preasad and Meshwar Prasad and another), the Hon'ble Apex Court has held that where it appears to the Court on a consideration of the facts and circumstances of the case that the valuation is arbitrary, unreasonable and the plaint has been demonstratively undervalued, the Court can examine valuation and can revise the same. 14.In 1988-2-L.W.161 (D.Pattammal Vs. K.Kalyanasundaram), this Court has held as follows: 22.Thus, an analysis of the various decisions cited by learned counsel on both sides shows that the market value of the property when it happens to be a building and land appurtenant thereto, should be the actual market value. the method of arriving at the same is by considering the evidence which is placed before the court by the parties. If the parties are able to place evidence in the shape of sales of similar properties situated in the neighbourhood or the locality, then that would be valuable evidence which should be taken into account. If, on the other hand, such evidence is not available at all then, the court is certainly entitled to fix the value of the property by adopting the capitalisation method. 23. ........ 24.As the provision under the corresponding S.25 (a) of the present Act is entirely different from the provision under S.7 (iv) (c) of the old Act, the principle laid down by the Supreme Court will not be helpful to the petitioner herein. Under S.25(a) or S.30 of the Act, the plaintiff is not free to make his own estimation of the value of the relief sought for in the plaint. He has to compute the market value of the property as such under both the sections. Hence he has to furnish to the Court the relevant evidence and the relevant particulars on which the market value is computed by him. 25. In the present case, the Court below has appointed an Advocate-Commissioner to determine the market value. It is represented that the Advocate Commissioner has taken evidence and submitted his report to the court. It is for the trial court to consider whether the report of the Advocate- Commissioner is supported by relevant evidence, in the sence that the evidence placed before the Commissioner relates to similarly situated properties or properties situated in the neighbourhood. If the court comes to the conclusion that the evidence placed before the Advocate-Commissioner is not relevant or not sufficient, the court had to determine under what basis the value has to be computed. If the Court ultimately finds that there is no evidence to show as to what would be the value of the property in the open market, then the court may arrive at the value by adopting capitalization method. 26.If, on the other hand, the court finds that there is sufficient evidence before the Court to fix the value which the property would fetch in the open market, then the court is bound to accept the same. 15. In 2001 (4) CTC 764 (Kamaleshwar Kishore Singh Vs. Paras Nath Singh and others), the Hon'ble Apex Court has held that arbitrary valuation of the suit property to evade payment of Court fee or for conferring jurisdiction on court which it does not have or for depriving jurisdiction of Court which it would otherwise have, can also be interfered with by Court and it is substance of relief and not form which will be determinative of valuation and payment of Court fee. Thus, this Court as well as the Hon'ble Apex Court have held that if the Court comes to the conclusion that there appears to be an undervaluation made by the plaintiff, the Court can examine the valuation made by the plaintiff in the suit. 16.The learned Senior counsel appearing for the petitioner, by relying on the decisions reported in 2003(1) CTC 705 (George Thomas Vs. Smt. Srividya and another) contended that the valuation of suit and payment of proper Court fee is primarily matter between Court and State and the defendant cannot stall proceedings of Court by raising question of valuation and payment of Court fee. That is the case where the defendant raised the issue regarding Court fee at the appellate stage without raising the same before the trial Court. The Division Bench in the said decision, however has held that even in absence of any plea by the defendant, the Court can direct plaintiff to pay Deficit Court fee. Hence, the judgment cannot be useful to the petitioner. 17.In the present case on hand, an Advocate Commissioner has been appointed to determine the market value. After the report is filed by the Advocate Commissioner, the trial Court has to consider whether the report of the Advocate Commissioner is supported by relevant evidence. On considering the report of the Advocate Commissioner and the objection thereon, the Court will have to determine the Court fee payable by the plaintiff. The petitioner can always question the said determination, if any made by the trial Court, if it is against the petitioner. While so, the petitioner even at the inception has come to the Court challenging the said order. 18.In view of the above stated position, I am of the considered view that the order dated 20.01.2009 made in I.A.No.665 of 2007 in O.S.No.453 of 2005 by the learned Additional District-cum-Sessions Judge (FTC No.1), Coimbatore does not require any interference by this Court. 19.In fine, the Civil Revision Petition stands dismissed. However, no order as to costs. arul To 1.The Additional District Judge, Fast Court No.1, Coimbatore