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Judgment
S. Palanivelu, J.—The petitioners/plaintiffs filed Suit before the Subordinate Judge, Cheyyar for partition. The Court below returned the
Plaint by stating that there is no prayer for final decree, and that the Court-fee was not paid for the second relief i.e., mesne profits u/s 44(1) of
Court-fee Act. Learned counsel for the petitioners represented the Plaint with endorsement referring Lakshmi Annual and others v. Subbaraj and
others, AIR 1975 Mad. 208, and submitted that the Court-fee in respect of future mesne profits in the Plaint need not be paid.
On 18.12.2008 the learned Subordinate Judge, Cheyyar, again returned the Plaint by stating that in the above judgment there was no prayer for
future means profit, while in this case there is a prayer for future means profit.
In the considered view of this Court, even if the prayer for final decree for partition is absent in the prayer column, after the passing of the
preliminary decree there is no bar for plaintiffs to initiate proceedings for passing of final decree and they may file necessary Application. Hence,
there is no necessity to incorporate the prayer as to passing of the final decree.
Insofar as the question of payment of Court-fee, the same could not be ascertained at the time of filing of the Plaint. The mesne profits would be
ascertained by the Court on future occasion and there is no need and requirement for the plaintiffs to pay Court-fee u/s 44(1) of Tamil Nadu Court
Fees and Suit Valuation Act, 1995, since the mesne profits are not ascertainable. Section 44(1) goes to the effect that if the profits ascertained to
be due to the plaintiff are in excess of the profits as approximately estimated and sued for, no decree shall be passed until the difference between
the fee actually paid and the fee that would have been payable had the said comprised the whole of the profits so ascertained is paid.
In this regard there is no necessity for the plaintiffs for the present to pay Court-fee. However, the question with regard to maintainability is kept
open to be agitated before the Trial Court. In the result, the Civil Revision Petition is allowed. The learned Subordinate Judge, Cheyyar is directed
to take the Plaint to file, if otherwise in order. No costs. Connected M.P. is closed.