(Civil revision petition preferred under Sec.115 of the Code of Civil Procedure against the fair and decretal order dated 8.2.2005 made in CMA No.12 of 2004 on the file of the Principal Sub Court, Nagapattinam, confirming the order returning the plaint dated 5.12.2002 made in O.S.No.184 of 2000 on the file of the District Munsiff Court at Nagapattinam.)

An order of the learned Principal Subordinate Judge, Nagapattinam, dismissing an appeal in CMA No.12 of 2004 filed by the revision petitioner/plaintiff wherein the order of the District Munsif, Nagapattinam, returning the plaint on the ground of valuation, was affirmed, is under challenge.

2. The revision petitioner as plaintiff, filed a suit for mandatory injunction directing the respondent/defendant to vacate the property and hand over possession, along with a permanent injunction. The written statement was filed, and issues were framed by the lower Court. At that juncture, the plaint was verified by the Court Fee Examiner from this Court, and it was found that the valuation of the property is Rs.1,83,125/-, and hence, the Court Fee should have been paid thereon. After hearing both sides, the District Munsif was of the opinion that it is a fit case where the Court Fee was to be paid for Rs.1,83,125/-, and apart from that, that Court lacks jurisdiction to entertain the suit and hence, returned the plaint for proper presentation before the appropriate Court. Aggrieved over the same, the plaintiff took it on appeal before the Sub Court, Nagapattinam, in CMA No.12 of 2004. Opportunity of being heard was given to both sides, and the learned Subordinate Judge was of the opinion that the order of the trial Court was to be affirmed, and hence, this revision at the instance of the plaintiff.

3. The learned Counsel appearing for the petitioner would submit that it was a suit for mandatory injunction; that both the lower Courts were not correct in holding that a suit for mandatory injunction cannot be filed in a case of permissive possession; that the lower appellate Court was under mistaken impression that the proceedings in question were proceedings on a check-slip, wherein the determination of Court Fee was very relevant; but, it was not so; that the proceeding before the Sub Court was an appeal against an order returning the plaint, and therefore, the only question to be decided in the appeal was whether the District Munsif was correct in returning the plaint or not; that whether the Court Fee is payable or whether there is a defrauding of the revenue is totally irrelevant, and thus, the learned Subordinate Judge has taken an erroneous view. Added further the learned Counsel that the learned District Munsif erred in returning the plaint on the basis of under-valuation ignoring the fact that in the plaint itself, there were certain cogent and valid reasons for filing the suit for mandatory injunction and in support of the valuation therein; that the learned District Munsif cannot go into the truth or otherwise of the averments in the plaint, and under the circumstances, the order of the learned Subordinate Judge has got to be set aside.

4. This Court is of the considered opinion that this revision itself does not require even an admission either, or a notice to be issued to the respondent/defendant for the simple reason that a reading of the plaint would clearly indicate that what was the relief sought for by the plaintiff was one for recovery of possession of an immovable property from the hands of the defendant. Under the circumstances, the framing of the suit as one for mandatory injunction directing the defendant to hand over possession of the property, if allowed, all suits for recovery of possession of an immovable property will be filed with a relief of mandatory injunction. Apart from that, it would be appropriate to reproduce the provisions of Sec.27 of Court Fees Act. Sec.27 reads thus:

"27. Suits for Injunction: In a suit for injunction -

(a) Where the relief sought