The trial Court's decision on valuation and sufficiency of Court fee paid, even if found to be erroneous, does not give the defendant the right to maintain a revision under Section 115 CPC.

( 1 ) HEARD the learned counsel for the petitioners and the respondents.

( 2 ) THIS is defendants' revision under Section 115 CPC. The suit is for possession of the suit property which has been valued at 14,00,000/- under Section 29 of the Karnataka Court Fees and Suits Valuation Act, 1958 (in short the 'act') ad valoram Court fee of Rs. 26,875/- has been paid. By the impugned order, the Court below has held that the Court fee paid on the plaint was sufficient.

( 3 ) THE defendants disputed the valuation of the said suit property. The Court below, after examining the valuation given by the Registered Valuer and taking into account the age of the building which is about 60 years old, found that the Court fee paid on the plaint was sufficient.

( 4 ) ACCORDING to the learned counsel appearing for the petitioner/defendant, the trial Court has miserably erred in determining the market value of the subject matter of the suit by not taking into consideration the relevant factors and further by not holding proper enquiry in this regard as required under Section 11 (2) of the Act. On the other hand, the learned counsel appearing for the respondent has taken an objection to the very maintainability of the revision petition filed under Section 115 CPC and to substantiate his stand, he has relied on the judgment of the Supreme Court in the case of Sri Rathnavarmaraja v. Vimala AIR 1961 SC1299.

( 5 ) SECTION 11 (2) of the Act reads as under:-11. Decision as to proper fee in Courts :- (1)*** *** (2) Any defendant may, by his written statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim but, subject to the next succeeding sub-section not later, plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. If the Court decides that the subject matter of the suit has not been properly valued or that the fee paid is not sufficient,the Court shall fix a date before which the plaint shall be amended in accordance with the Court's decision and the deficit fee shall be paid. If the plaint be not amended or if the deficit fee be not paid within the time allowed the plaint shall be rejected and the Court shall pass such order as it deems just regarding costs of the suit.

( 6 ) WITH reference to the above provision contained in sub-section (2) of Section 11 of the Act, this Court has consistently held that if any defendant pleads in his written statement that the subject matter has not been properly valued or the Court fee paid is not sufficient, then it is mandatory on the part of the trial Court to decide the issue so raised before recording of the evidence. (See: Umarabba v. Pathunni (1981) 2kant LJ 97, Thimmaiah v. Sreenivasa ILR (1999) 3 Kant 3660, Umakanth v. M. Malathi (1998) 2 Kant LJ 220.

( 7 ) IN the present case, as already noticed, the trial Court in fact has decided the issue on valution and quantum of Court fee payable by holding an enquiry as it thought fit. Therefore, the Court cannot be said to have committed any error of jurisdiction in not considering the question of valuation and sufficiency of Court fee paid as mandated under Section 11 (2) of the Act. The grievance of the defendant before this Court is that the valuation has not been done in proper manner. The question now is whether such plea can to permitted to be raised in the revisional jurisdiction under Section 115 of CPC or not.

( 8 ) THE above question has been squarely answered by the Supreme Court in Rathnavarmaraja's case (supra ). In the case before the Supreme Court, the facts were almost the same as in the case at hand and the relevant provisions being Section 12 (2) of the Madras Court Fees and Suits Valuation Act, 1955 is pari materia to Section 11 (2) of the Act. The Supreme Court has held that" Whet