S.R. Somasundram vs S.K. Kumarasami and Others

B.P. Jeevan Reddy, J.—Leave granted. Heard counsel for both the parties at quite some length.

We are of the opinion in the facts and circumstances of this case, the High Court ought not to have interfered with the order of the learned trial judge on the question of court fee, or for that matter, amendment of the plaint. Accordingly, we set aside the order of the High Court in C.R.P. Nos. 2338-39 of 1994. The order of the learned District Judge in this behalf shall stand. It is made clear that any observations made or findings recorded, whether in the order of the trial judge or in the order of the High Court, shall not affect the merits of the suit which shall be disposed of on its own merits. No costs.

Civil Appeal No. of 1995 (arising out of S.L.P.(C) of 1995 against C.M.A. No. 844 of 1994):

The High Court has vacated the injunction granted by the trial judge as a consequence of its finding on the question of court fee. This is what the learned single judge has said in para 34 of the judgment: The only question which remains to be considered is whether the Plaintiff is entitled to the relief of interim injunction restraining the first Defendant from alienating the suit properties till the disposal of the suit. The order in IA No. 1358 of 1987 is as unsatisfactory as the other two orders. I have already held that the Plaintiff is bound to seek the setting aside of the compromise decree. That decree will be in force until it is set aside. As per the said decree, the Plaintiff has no share whatever in the suit properties. He cannot claim to have made out a prima facie case for grant of an injunction.

Since we have set aside the order of the learned single judge in so far as it relates to court fee, the order vacating injunction is also liable to be set aside. We make it clear that we have not gone into the merits of the contentions urged by both the parties. While the Defendants contend that the suit is not a bonafide one, that the Plaintiff has got other properties which he obtained under the compromise decree and which he has not brought into this suit, the Plaintiffs case is that the Defendant has taken unfair advantage of his position and has tried to defeat his rights unjustly. We express no opinion on the rival contentions. Since the order vacating the injunction was merely consequential to the order of court fee, the matter has got to go back to the High Court for decision of C.M.A. No. 844 of 1994 afresh in accordance with law.

It is clarified further that the direction of the High Court towards the end of its judgment that "after the valuation in the plaint is amended and the appropriate court fee is paid, the trial court shall decide the question whether the suit is barred by the provisions of Order 23, Rule 6A of the CPC as a preliminary issue before proceeding further in the suit would mean that such an objection can be raised on grounds other than the ground of valuation or court fees. However, whether the said issue should be tried as a preliminary issue or should be tried along with the other issues in the suit is a matter for the court to decide.

It is obvious that the order of the trial judge dismissing the suit for non-compliance of the orders of the High Court (contained in the impugned order) automatically stands set aside. The appeal is disposed of accordingly.

No costs.