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Judgment
R.S. Ramanathan, J.—The Defendant in O.S. No. 300 of 2006 on the file of the XVI Assistant Judge, City Civil Court, Chennai, is the Revision Petitioner. The Respondent/Plaintiff filed the above Suit for recovery of possession of the suit property stating that he was the absolute owner of the property and due to some financial crisis, he approached the Revision Petitioner for financial assistance and the Revision Petitioner also advanced various amounts on various dates and the Revision Petitioner was put in possession of the suit property under leave and license on 20.5.1995 on condition that the Revision Petitioner should vacate after the Respondent/ Plaintiff repaid the amount and in the year 1997, the Respondent/Plaintiff repaid the amount and requested the Revision Petitioner to vacate and hand over the vacant possession. The Revision Petitioner without handing over the possession, sent a notice stating that he was put in possession of the property on the basis of the Agreement of Sale and he was in possession as an agreement holder and also filed a Suit in O.S. No. 6514 of 2002 on the file of the XI Assistant City Civil Court, Chennai, for permanent injunction. The said Suit was dismissed for non-prosecution on 25.10.2005 and even thereafter, the Revision Petitioner did not vacate the suit property and therefore, the Suit was filed for recovery of possession and for damages.
The Revision Petitioner filed a Written Statement stating that he entered into an Agreement of Sale with the Plaintiff/Respondent and paid an advance of Rs. 1,00,000/- on 10.1.1994 and also made several payments, totaling Rs. 33,00,000/- on various dates and having regard to the payment made by him, he was put in possession of the property in part performance of the Agreement of Sale and he never agreed to vacate the suit property on receipt of the payment made by the Respondent/Plaintiff and the Respondent /Plaintiff also did not make any payment and as his possession was threatened and interfered with, he filed a Suit in O.S. No. 6514 of 2002 for permanent injunction and being an agreement holder, he was entitled to be in possession of the property and therefore, the Suit was liable to be dismissed. Thereafter, the Revision Petitioner herein filed I.A. No. 19911 of 2011 under Order 14, Rule 1, C.P.C. to try the issue regarding valuation of the suit property as a preliminary issue and also filed I.A. No. 19912 of 2012 under Order 8, Rule 9, C.P.C. to receive additional Written Statement and Counter-claim and both these Applications were dismissed and aggrieved by the same, these Revisions are filed.
C.R.P. (PD) No. 2694 of 2012 was filed against the order dismissing I.A. No. 19911 of 2011 filed by the Revision Petitioner under Order 14, Rule 1, C.P.C. to decide the preliminary issue regarding the valuation of the suit property and the pecuniary jurisdiction of the Court to try and to decide the Suit. C.R.P. (PD) No. 2915 of 2012 was filed against the dismissal of I.A. No. 19912 of 2011 in rejecting the Application filed under Order 8, Rule 9, C.P.C. to receive Additional Written Statement and Counter-claim.
Mr. A. Venkatesan, the learned Counsel representing Mr. J.R.K. Bhavanatham submitted that the Court below without properly appreciating the provisions of Section 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act and also the law laid down by the Hon''ble Division Bench of this Court in the Judgment reported in S.N.S. Sukumaran and Others Vs. C. Thangamuthu and Others etc. etc., erred in holding that the Application to try the issue of proper Court-fee and valuation of the suit as a preliminary issue cannot be entertained after the commencement of the trial, without properly appreciating that the trial has not commenced in this case.
The learned Counsel further submitted that though the Suit O.S. No. 300 of 2006 was posted in the list on 13.12.2006 and the Plaintiff filed proof Affidavit and marked his documents, on that date the Defendant was set ex parte and on 29.3.2007 the Revision Petitioner filed I.A. No. 5929 of 2007 to set aside the ex parte decree passed in O.S. No. 300 of 2006 and on 8.8.2008, the same was allowed and confirmed in C.R.P. (PD) No. 2930 of 2008 and therefore, once an ex parte decree has been set aside, the trial has to commence afresh and the Application to try the preliminary issued regarding the valuation of the Court-fee was filed after the ex parte decree was set aside and therefore, the Application was filed before the commencement of trial and the Court below ought to have tried the same as preliminary issue as the Petitioner has satisfied the ingredients of Section 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act.
The learned Counsel further submitted that this Court has held in the Judgment reported in The Public Prosecutor Vs. Ramayya Mudaliar and Others, that once an ex parte decree was set aside, the entire proceedings were set aside and therefore, all the proceedings, which took place subsequent to the stage of non-appearance of the Defendant leading to the passing of ex parte shall not be considered and therefore, it cannot be stated that the trial has commenced as PW1 was examined and therefore, Application can be filed u/s 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act to try the preliminary issue regarding the jurisdiction of the Court after the ex parte decree was set aside.
The learned Counsel also relied upon the Full Bench Judgment of reported in Aziz Ahmed Khan Vs. I.A. Patel, ; Mattadhari Primary Agricultural Co-op. Bank Vs. Saroja Ammal and Another, Selvaraj and Others Vs. Kannan, in support of his contention. He, therefore, submitted that having regard to the judgment of this Court and the Hon''ble Full Bench of the Andhra Pradesh High Court, once the ex parte decree was set aside, the proceedings taken prior to the ex parte decree were also set aside and therefore, it cannot be contended that the trial has commenced by the examination of PW1 and therefore, the Application filed u/s 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act was not maintainable.
On the other hand, Mr. N.R. Chandran, the learned Senior Counsel for the Respondent submitted that this Court has consistently held that after the commencement of the trial, the question of taking preliminary issue will not arise and in this case, the trial has already commenced on 13.12.2006 and in the presence of the Revision Petitioner, the proof Affidavit was filed and documents were also marked and the case was adjourned for cross-examination to 16.12.2006, 21.12.2006, 28.12.2006, 3.1.2007, 11.1.2007 and at the request of the Revision Petitioner, the case was referred to mediation on 11.1.2007 and on 26.2.2007, the learned Counsel for the Revision Petitioner/Defendant reported no instruction before the Trial Court and therefore, the matter was sent back to the Court on 29.3.2007 and the learned Counsel appearing for the Revision Petitioner/Defendant filed an Application for adjournment and the same was rejected and the Revision Petitioner was set ex parte on 29.3.2007. Thereafter, the Revision Petitioner filed LA. No. 5979 of 2007 on 30.3.2007 to set aside the ex parte decree passed on 29.3.2007 and the same was allowed on 8.8.2008 and thereafter, the Respondent filed C.R.P. (PD) No. 2930 of 2008 and the Revision was disposed of on 28.10.2011 and during the pendency of the Revision, the Application was filed by the Revision Petitioner to decide the preliminary issue and therefore, once the ex parte decree was set aside on 8.8.2008, the Suit has to be proceeded from the stage on which the Defendant was set ex parte and therefore, the trial has already commenced on 13.12.2006 and PW1 was examined and the Petition filed thereafter to try the preliminary issue cannot be entertained.
The learned Senior Counsel for the Respondent also relied upon the following judgments in support of his contention:
Balasubramaniam and Others Vs. Masilamani and Others
Nagarjuna Oil Corporation Ltd. Vs. R. Revathi, ; and
S.N.S. Sukumaran and Others Vs. C. Thangamuthu and Others etc. etc.,
The learned Senior Counsel also relied upon the Judgment rendered by me, in the matter of Thangeswari, Arumba Ammal and Ponnusamy Vs. Thirumalvalavan and Others , wherein I held after relying upon the Judgment of the Hon''ble Supreme Court reported in Vareed Jacob Vs. Sosamma Geevarghese and Others, B. Gurubackiam Vs. The State of Tamil Nadu and Others that when the Suit was dismissed and latter restored, the interim orders already passed will revive on restoration and therefore, after the ex parte decree was set aside, the earlier proceedings taken prior to that will revive and therefore, after the ex parte decree Was set aside, the trial which had already commenced will revive and the Application to decide the issue regarding the valuation and Court-fee cannot be decided as a preliminary issue.
In the Judgment reported in S.N.S. Sukumaran and Others Vs. C. Thangamuthu and Others etc. etc., the Hon''ble Division Bench of this Court on a reference made it, has settled the law regarding the preliminary issue as per Order 14(1), C.P.C. and Section 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 as follows:
(1) The Tamil Nadu Court Fees and Suits Valuation Act, 1955 (Section 12) enacted by the State Legislature on a subject covered by the Concurrent List, albeit inconsistent with the provisions of the CPC (Order 14, Rule 2) and being in compliance with the requirement of Article 254 of the Constitution of India, having been given assent by the President of India, shall prevail over the provisions of the Code of Civil Procedure.
(2) When a Defendant comes forward with a case pleaded in the Written Statement questioning the correctness of the valuation of the suit property and payment of Court-fee and asks the Court, by an Application, to decide it first before deciding the Suit on merits, then a duty is cast upon the Court u/s 12(2) of the State Act to first decide the objection before deciding the Suit on merits.
(3) However, before proceeding to decide the objection with regard to valuation and Court-fee as provided u/s 12(2) of the State Act, the Court shall prima facie satisfy itself, on perusal of the pleadings of the parties and the materials brought on record, that the objection raised by the Defendant has substance.
(4) Such objection with regard to improper valuation of the Suits and insufficiency of Court-fee shall be entertained by the Court only before the hearing of the Suit on merits commences and witnesses are examined. Section 12(2) of the State Act makes it clear that such objection shall be heard and decided before evidence is recorded on the merits of the case.
(5) Exercise of right by the Defendant as contained in Section 12(2) of the Act must be bona fide and not with an ulterior motive of dragging the Suit on this issue. Hence, the Court shall not grant unnecessary adjournments in hearing of such Applications, and in the event the Court finds that the Defendant is not diligent or co-operating with the Court in the disposal of such objection expeditiously, then the Court shall proceed with the hearing of the Suit on merits and decide all issues, including the one relating to the valuation of the Suit and the adequacy or otherwise of Court-fee, together.
Further, the Hon''ble Division Bench of this Court confirmed the Judgment reported in V.R. Gopalakrishnan Vs. Andiammal and Chinna Perumal, and Solaiammal v. Rajarathinam, 2001 (2) CTC 411, and overruled the Judgment reported in E. Pushpalatha v. C. Shanmughasundaram, 2003 (1) CTC 87; A. Chinnaraj Vs. Saroja Ammal . Therefore, as per Clause 2 & 4 of the aforesaid Division Bench Judgment reported in S.N.S. Sukumaran and Others Vs. C. Thangamuthu and Others etc. etc., the objection regarding the improper valuation of the Suit and insufficiency of Court-fee shall be entertained by the Court only before the hearing of the Suit on merits and before witnesses are examined and Section 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act makes it clear that such objection shall be heard and decided before the evidence is recorded on the merits of the case.
Therefore, we will have to see whether any evidence was recorded on the merits of the case on the date of filing of the Application by the Revision Petitioner in December 2011.
As stated supra, the trial has commenced on 13.12.2006 and the Plaintiff/Respondent filed the proof Affidavit and examined himself as PW1 and marked documents and the case was adjourned at the instance of the Revision Petitioner to various dates and finally, the Revision Petitioner was set ex parte on 29.3.2007 and the said ex parte decree was restored on 8.8.2008. Therefore, we will have to see the effect of setting aside the ex prate decree and whether, it revives the earlier proceedings or it has to be construed that de nova trial has to be commenced.
In the judgment reported in the case of The Public Prosecutor Vs. Ramayya Mudaliar and Others, , it was held that when the ex parte decree was set aside, all the proceedings from the stage of his non appearance has been set aside. In the judgment reported in Aziz Ahmed Khan Vs. I.A. Patel, the judgment of this Court reported in The Public Prosecutor Vs. Ramayya Mudaliar and Others, was relied on and also the Hon''ble Full Bench Judgment of this Court reported in Doraiswami v. Palaniandi, AIR 1956 Mad 633, and also the Judgment reported in Solamalal Mudaliar Vs. Vadamalal Muthiran, and held that once an ex parte decree was set aside all the proceedings taken from the stage of non-appearance of the Defendants become ineffective.
It is also seen from the Judgment reported in Doraiswami v. Palaniandi, AIR 1956 Mad 633, the view expressed in The Public Prosecutor Vs. Ramayya Mudaliar and Others, that when ex parte decree was set aside, all proceedings from the stage of non appearance are set aside. However, it was further held as follows:
Strictly speaking, this is true in the sense that the absentee Defendant is not bound by proceedings, which had taken place in his absence. Such proceedings have not become final as against him." Having accepted the legal proposition, the learned Judge further observed:
these decisions however, do not prevent the Plaintiff choosing to treat the evidence given by him at the ex parte trial as evidence after the ex parte decree had been set aside and a fresh trial had commenced.
Of course, the defendant would have the right to cross-examine the witnesses, who had been examined on behalf of the Plaintiff, but it will be an idle farce, if it is necessary that the Plaintiff should re-examine the witnesses already examined to repeat what they had said already. The Plaintiff, can very well inform the Court that the prior evidence may be taken to be the evidence tendered after the fresh trial had commenced. That is what should be deemed to have happened in this case. Instead of the Plaintiff calling the two witnesses, he tendered their evidence already taken as evidence at the fresh trial and without any objection, the Court accepted that evidence.
It is obvious that the only consideration is that no prejudice should be caused to the Defendant. In this case before us the Defendant cannot obviously complain of any prejudice, because he never chose to participate in the trial. The decree appealed against is perfectly valid.
Therefore, a liberty is given to the parties to treat the evidence already recorded to be taken into consideration, but the law has been laid that after the ex parte decree was set aside, the proceedings from the stage of his non-appearance are all set aside. The emphasis is "from the stage of non appearance "
As stated supra, evidence of PW1 was taken on 13.12.2006 and the Revision Petitioner was set ex parte on 29.3.2007 for his non-appearance and an ex parte decree was passed on that date and therefore, as per the Judgments of our High Court reported in The Public Prosecutor Vs. Ramayya Mudaliar and Others, Doraiswami v. Palaniandi, AIR 1956 Mad 633, the proceedings from the stage of his non-appearance shall be set aside and in this case, the trial has commenced on 13.12.2006 and at that time, the Revision Petitioner was present in Court and the case was adjourned for the cross-examination of PW1 at the instance of the Revision Petitioner on various dates and finally, on 23.3.2007, the Defendant was set ex parte. Therefore, the proceedings, which could be set aside are the proceedings from the date of his non-appearance, by reason of the setting aside of the ex parte decree and as the trial has commenced earlier to that in the presence of the Revision Petitioner, the evidence taken on 13.12.2006 cannot be erased.
In other words, as the trial has commenced on 13.12.2006, having regard to the Hon''ble Division Bench Judgment of this Court reported in S.N.S. Sukumaran and Others Vs. C. Thangamuthu and Others etc. etc., the objection regarding improper valuation shall not be entertained after the hearing of the Suit and the Petition filed under Order 14(1), C.P.C. and Section 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act, 1996 is not maintainable and there is no need to frame the preliminary issue regarding the valuation of the suit property. Hence, I do not find any infirmity in the order of the Court below. Accordingly, CRP (PD) No. 2694 of 2012 is dismissed.
Further in the Judgment reported in the Selvaraj and Others Vs. Kannan, this Court held as follows:
A reading of the Court-Fees Act indicates that there are three stages at which the Court can determine the proper Court-fee payable on a Plaint, the first stage is before ordering the Plaint to be registered; the second stage is where a Defendant in his Written Statement file before the first hearing of the Suit or before any evidence is recorded on the merits of the case, pleads that the subject matter of the Suit was not properly valued and the Court can, as a preliminary issue decide the question whether the suit property has been properly valued or not before the evidence is recorded; and the third stage is on the basis of an objection raised by the Court-fee Examiner u/s 18 of the Court Fees Act.
In so far as CRP (PD) No. 2915 of 2012 is concerned, the question to be decided is whether the Additional Written Statement and the Counterclaim can be received.
To appreciate the same, certain admitted facts have to be stated. The Revision Petitioner filed O.S. No. 6514 of 2002 for permanent injunction against the Respondent and that Suit was allowed to be dismissed for non-prosecution and he also filed C.S. No. 264 of 2007 before the Original Side of this Court for specific performance and the Respondent herein filed Application A. No. 2632 of 2008 in C.S. No. 264 of 2007 for rejection of the Plaint and that was allowed on 30.7.2008 by the learned Single Judge holding that the Suit was barred by limitation under Order 2, Rule 2, C.P.C. and the Revision Petitioner challenged the order made in Application No. 2632 of 2008 and the same was also dismissed and SLP was filed before the Hon''ble Supreme Court in SLP No. 27330 of 2001 and that was allowed to be withdrawn and the Hon''ble Supreme Court observed that the Revision Petitioner herein shall be at liberty to raise all defences available to him and the Suit filed by the Respondent herein for possession as may be permissible in law. Thereafter, the Revision Petitioner filed LA. No. 19911 of 2011 under Order 8, Rule 9, C.P.C. to receive the additional Written Statement as well as the Counter-claim.
It is submitted by Mr. A. Venkatesan, the learned Counsel for the Revision Petitioner that Counter-claim can be filed even after filing of the Written Statement and the only condition is that the cause of action for the Counter-claim must have arisen before the filing of the Written Statement and relied upon the Judgments reported in Mahendra Kumar and Another Vs. State of Madhya Pradesh and Others, Smt. Shanti Rani Das Dewanjee Vs. Dinesh Chandra Day (dead) by LRs., A. Nandagopala Krishnan Vs. Antony
The learned Counsel further submitted that the additional Written Statement can be filed at any stage and the Court has got discretion to receive the additional Written Statement and in this case, admittedly the trial has not commenced and in the additional Written Statement, the Respondent/Plaintiff was not taken by surprise and the Revision Petitioner had only narrated the filing of the earlier cases and no admission made in the Additional Written Statement was withdrawn and therefore, the additional Written Statement has to be received and relied upon the judgments reported in Radhabai Ammal and Another Vs. N. Loganathan and Others, S. Sathish and S. Raji Vs. Dr. Sumathi and Others
On the other hand, Mr. N.R. Chandran, the learned Senior Counsel for the Respondent submitted that though the Counter-claim can be filed after the filing of the Written Statement provided the cause of action arose before filing of the Written Statement, having regard to the prayer in the Counter-claim, the same cannot be allowed to be pleaded taking into consideration of the dismissal of C.S. No. 264 of 2007 filed by the Revision Petitioner herein for specific performance and the same was rejected and confirmed by this Court.
He further submitted that in the Counter-claim, the Revision Petitioner relied upon Section 53-A of Transfer of Property Act and seeks a decree to protect his possession in respect of 5700 sq. ft. of land, whereas the Suit property is in respect of 2400 sq. ft of land and therefore, the Counter-claim is beyond the scope of the suit filed by the Respondent and the Counter-claim to protect his possession is also not maintainable and the Petitioner is not entitled to invoke the benefits of Section 53-A of the Transfer of Property Act.
He further submitted that admittedly, there is no Agreement of Sale in writing between the parties and therefore, Section 53-A cannot be invoked to protect his possession, if any in the absence of any written document and relied upon the following Judgments in support of his contention:
Shrimant Shamrao Suryavanshi and Another Vs. Pralhad Bhairoba Suryavanshi by Lrs. and Others,
P.S. Sugumaran Vs. Ragini alias Usha and Another, ; and
Mahadeva and Others Vs. Tanabai,
To appreciate the contentions of the learned Counsel appearing for the parties, we will have to see the additional Written Statement.
As stated supra, in the original Written Statement filed by the Revision Petitioner, he has not stated anything about the Suit C.S. No. 264 of 2007 and the rejection of that Suit and the Appeal filed by him before the Hon''ble Division Bench of this Court. In the additional Written Statement, as rightly pointed out the learned Counsel for the Revision Petitioner, no inconsistent or destructive pleas were taken and no admission was withdrawn and the Revision Petitioner has stated that the Suit was filed by him in C.S. No. 264 of 2007 and the rejection of the Suit in Application No. 2632 of 2008 and the order passed by the Hon''ble Supreme Court in SLP (Civil) No. 27330 of 2011. Further, he has stated that various amounts paid by him to the Respondent/Plaintiff and he also took the plea that the Respondent/Plaintiff did not repay the amount and also claimed protection u/s 53-A of the Transfer of Property Act to retain possession. On that basis, he also made a Counter-claim. Admittedly, there is no Agreement of Sale in writing between the parties to invoke the benefits of Section 53-A of the Transfer of Property Act.
The Hon''ble Supreme Court has laid down the conditions for invoking Section 53-A of the Transfer of Property Act in the Judgment reported in Shrimant Shamrao Suryavanshi and Another Vs. Pralhad Bhairoba Suryavanshi by Lrs. and Others, as follows:
There must be a contract to transfer for consideration any immovable property;
The contract must be in writing, signed by the transferor, or by someone on his behalf;
The writing must be in such words from which the terms necessary to construe the transfer can be ascertained;
The transferee must, in part performance of the contract, take possession of the property, or of any part thereof;
The transferee must be done some act in furtherance of the contract; and
The transferee must perform or be willing to perform his part of the contract.
The second condition is that the contract must be in writing. Admittedly the Agreement of Sale alleged to have been executed by the Revision Petitioner is not in writing. Therefore, the second condition is absent and therefore, the Counter-claim filed u/s 53-A of the Transfer of Property Act to protect his possession is not permissible. Therefore, even though, a Counter-claim can be filed after the filing of the suit, provided the cause of action for the Counter-claim arose before the filing of the Written Statement, having regard to the fact that the Counter-claim was filed u/s 53-A of the Transfer of Property Act and the Agreement of Sale was not in writing, the Revision Petitioner is not entitled to take the plea of protecting his possession u/s 53-A of the Transfer of Property Act in the Counter-claim and hence, the Counter-claim cannot be permitted.
As regards the additional Written Statement, as stated supra, the Revision Petitioner only narrated the proceedings initiated by him in respect of the property and the trial has just commenced and the Respondent Plaintiff would not be put to surprise as he was aware of the entire proceedings and therefore, the Additional Written Statement can be received in evidence.
In this case, the Counter-claim was filed along with the additional Written Statement and having regard to the finding rendered above that the Counter-claim cannot be entertained as it is hit by Section 53-A of the Transfer of Property Act, the Additional Written Statement without Counterclaim can be allowed.
Hence, the order of the Court below in rejecting the entirety of the Additional Written Statement is set aside and the Court below is directed to receive the Additional Written Statement, but the plea regarding Section 53-A of the Transfer of Property Act and the Counter-claim to retain possession invoking the Section 53-A of the Transfer of Property Act is rejected.
In the result, CRP (PD) No. 2915 of 2012 is partly allowed and the relief regarding the Counter-claim is rejected. Consequently, connected Miscellaneous Petitions are closed. No costs.
After the Orders were pronounced in the above Revisions, the learned Senior Counsel Mr. N.R. Chandran submitted that suitable direction may be given to the learned XVI Assistant Judge, City Civil Court, Chennai, to dispose of the Suit at the earliest. Considering the fact that the Suit is of the year 2006 and PW1 was examined in chief on 13.12.2006, the learned XVI Assistant Judge, City Civil Court, Chennai, is directed to dispose of the Suit O.S. No. 300 of 2006 within a period of 16 weeks from the date of receipt of a copy of this Order.