Such issue to be raised at the first hearing of the suit.

The Order of the Court was as follows :

The petitioner is aggrieved by the order refusing to try the suit relating to Court-fees as a preliminary issue.

2. The respondent filed O.S. 130/98

"for redemption of mortgage and deliver vacant possession of the suit property to the plaintiff . . .and also pay damages for the illegal use and occupation . . . and for other releifs."

The suit was filed in 1998. The petitioner herein filed her written statement denying her liability and prayed for dismissal of the suit. An additional written statement was filed by her stating that the respondent is not entitled to seek recovery of possession without paying the proper Court-fees. To this, a reply statement was filed in November, 1999. Thereafter, I.A. 457/99 was filed by the petitioner under Order 14, Rule 2, C.P.C. and Section 12(2) of the Tamil Nadu Court-fees Act to try the additional issues Nos. 1 and 4 relating to Court-fees as preliminary issue. This was resisted by the respondent herein. The Court below refused to try these issues as preliminary issue and postponed them for decision along with other issues. Aggrieved by this, the revision has been filed.

3. Mr. Lakshmi Narayanan, learned counsel for the petitioner submitted that the Court below erred in postponing the decision of the issues relating to Court-fees when Section 12(2) of the Court-fees Act (hereinafter referred to as

"the Act) makes it mandatory for the Court to decide this question immediately. He submitted that if the issue is decided, then, the Court will have no jurisdiction to try the suit and therefore Section 14(2) of the C.P.C. will apply which empowers the Court to dispose of the case on a preliminary issue when it relates to jurisdiction of the Court or bar of suit. He relied on the following judgments to support his case :

(1) Meenakshisundaram Chettiar v. Venkatachalam Chettiar, ) Mad LJ 19; (2) I.T.C. Limited v. Debts Recovery Appellate Tribunal, (3) Nemi Chand v. Edward Mills Co., (4) Raju Gramani v. Srinivasa Gramani, (1958) 1 Mad LJ 308.

4. He submitted that there is really no difference between the scope of Section 12(2) of the Act and Order 7, Rule 11, C.P.C. and both have to be construed in consonance with each other and that clever drafting should not be allowed to come in the way of determining what the correct value of the suit is and that no party can deliberately undervalue the suit and thus pay a lower Court-fee.

5. Mr. Ramesh Babu, learned counsel for the respondent on the other hand submitted that the petition was nothing but an abuse of process of law and had been filed belatedly to drag on the trial and this question that 'proper Court-fees has not been paid cannot be tried as a preliminary issue as already been decided by this Court in two decisions namely, (2000) 3 Mad LJ 342 (Thandavaraya Poosali v. Periyasamy Asari) and (2001) 2 Mad LJ 481 : (Laljivora v. Srividya). Therefore, this is nothing but a dilatory tactic adopted by the petitioner who knows that her defence cannot be sustained. He also submitted that the application is highly belated and the additional written statement itself had been filed when the evidence of P.W. 1 had been concluded and cross-examination had begun. Therefore, even assuming that the objection relating to Court-fee is sustainable, the provisions of Section 12(2) of the Court-fees Act cannot come to his aid.

6. Section 12(2) of the Court-fees Act reads thus :

"Any defendant may, by his written statement of 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 th