The mandatory nature of S.12(2) of the Kerala Court Fees Act, 1959, and the defendant's statutory right to raise questions of proper valuation and court fee before evidence is recorded, as well as the court's duty to decide these questions before recording evidence affecting the defendant.

1. This revision arises from a suit for settlement of accounts. The plaintiff estimates that on settlement of accounts a sum of Rs. 1,25,000/- would be due to him. Accordingly he has paid a court fee of Rs. 12,480/-on the plaint One of the contentions raised by the Ist defendant is that the suit has not been properly valued and that the court fee paid is insufficient. On this contest the lower court raised the following question as the 2nd issue in the case:- "whether proper or sufficient court fee has been paid by the plaintiff in respect of the several reliefs sought for in the plaint?"

2. Though S.12 (2) of the Kerala Court Fees and Suits Valuation Act, 1959 provides that all questions arising from pleas advanced by the defendant relating to proper valuation of the suit and sufficiency of the court fee paid on the plaint 'shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim', the lower court did not do so in the instant case, for the reason (as stated by that court) that neither party alerted the court of the said provision or of the requirement to hear and decide issue 2 as a preliminary issue As a result the suit was tried and both sides adduced evidence on all the issues concerning merits of the claim. Evidence was closed on 17-3-1981. The case was posted to 26-3-1981 for arguments. On that day the plaintiff's counsel finished his arguments. The case was adjourned to 3-4-1981 for arguments by the defendants' counsel. On that day the defendants' counsel appears to have pointed out that issue 2 should have been decided as a preliminary issue, and pressed for hearing and deciding it as a preliminary issue before deciding the other issues Arguments were heard on issue 2 alone on 3-4-1981 and the case was adjourned to 7-4-1981 to answer that issue. At this stage the plaintiff filed a petition to delete issue 2 on the ground that the 1st defendant has not pressed for hearing issue 2 as a preliminary issue before evidence was recorded affecting him on the merits of the claim, and that he cannot after the recording of evidence affecting him on the merits of the claim invite a finding thereon. The lower court agreeing with the stand taken on behalf of the plaintiff as stated above deleted issue no. 2. In so doing the lower court relied on the decisions of this Court in Janaki Amma . Krishnan (1978 KLT. 463) and Sumithra v. Kamala Bair (MR. 1979 (2) Kerala 124) which clearly support the stand taken by the plaintiff.

3. Relying on A. V. Subrahmanyam v. C. Penkataramanamma (AIR. 1981 A. P. 147) the learned counsel for the 1st defendant-revision-petitioner contended before the learned Single Judge that the provision in 3 12 (2) is not mandatory and that non-compliance therewith will not affect the jurisdiction of the court to deal with a question arising from a defendant's plea relating to proper valuation of the suit and sufficiency of the court fee even after recording of evidence affecting him on the merits of the claim. On behalf of the plaintiff-respondent his learned counsel argued before the learned single Judge that S.12 (2) is mandatory and also contended that a defendant cannot be said to have been aggrieved by a finding entered that the suit has been properly valued or that the court fee paid is sufficient, and that, therefore, a defendant cannot be said to be aggrieved also by the court deleting an issue relating to proper valuation of the suit and sufficiency of the court fee paid. The learned single Judge taking the view that these are questions which require to be examined by a larger Bench has referred the case to a Division Bench.

4. One of us in Janaki Amma v. Krishnan (1978 KLT. 463) has pointed out that 'the court's power to decide the question of sufficiency of court fee paid on a plaint is, under the Court Fees and Suits Valuation Act, 1959, well defined and has enumerated the five stages in the life of a suit in the trial court when the court can e