Court has to simply to go in to averment in plaint.

This civil revision petition is directed against the fair and final order passed in O.S.No. 343 of 1994 on the file of the Court of Subordinate Judge, Srivilluputtur on 9-12-1996.

2. The petitioner who is the plaintiff filed the suit in O.S.No. 343 of 1994 on the file of Principal Sub Judge, Srivilliputtur seeking for the relief of reopening of the partition deed dated 11-12-1991 and for effecting a fresh partition in respect of all the suit properties and allotting the petitioner's share of 1/7 in the suit properties and for mesne profits.

3. The petitioner paid a fixed Court fee of Rs. 200/- under Section 37(2) of Tamil Nadu Court Fees and Suits Valuation Act, 1955 (hereinafter referred to as "the Act") and for mesne profits a court-fee of Rs. 8/- was paid under Section 22 of the Act.

4. The respondents herein resisted the claim by filing a written statement. When the suit was pending, a check-slip was issued for the deficit court-fee to the tune of Rs. 73, 373.75 in the suit. The petitioner filed objection to the said check-slip stating that the relief sought for in the suit is only for re-opening of the partition deed and not for cancellation and that therefore, Sections 37(4) and 40(1) of the Act would not attract the case in hand.

5. The trial Court having considered the objection and the check-slip produced by the Court-fee Examiner, dismissed the suit on the ground that there is deficit court-fee. It was also held that there are two separate distinct reliefs and therefore, it attracted separate court-fees. Aggrieved over the same, the present civil revision petition has been filed.

6. Mr. Srinivasan, representing the counsel for the petitioner, would vehemently contend that the order impugned suffers from infirmity, since the petitioner did not seek any relief for cancellation of the partition deed and hence, it would not attract the provisions of Section 40(1) or 37(4) of the Act and that therefore, the order passed by the trial Court is liable to be set aside.

7. Per contra, Mr. S. Raveendran, the counsel for the respondents 4 and 6 strenuously opposed this petition by filing a counter inter alia contending that the said partition deed was duly registered and accepted by all parties even in the year 1991 and that the above said partition deed was fully acted upon by all the parties. He also contended that some of the respondents had sold away the properties allotted to them covered under the partition deed. He proceeded to say that the petitioner has not merely asked for re-opening, but he virtually asks for cancellation of the partition deed, since he alleged that there is a fraud played in effecting the partition by allotting properties to the parties and that therefore, Section 40(1) or Section 37(4) of the Act would certainly be attracted.

8. I have given my anxious consideration to the respective submissions made on either side and also gone through the petition, counter and other records.

9. Mr. N. Srinivasan learned counsel for the petitioner would submit, on the strength of the decisions in Sundara Ganapathi Mudali v. Daivasikamani Mudali, 1931 AIR(Madras) 94; Ramaiah Thevar v. Shanmugavel Thevar, (1979) 1 Mad LJ 142; Lakshmi Ammal v. K. M. Madhavakrishnan and Varadaraja Pillai v. Muthusamy Pillai, 1996 (2) CTC 523 that the relief sought for by the plaintiff in the suit is only for partition, that the Court cannot compel the plaintiff to pray for a relief which he has not chosen to pray in the plaint, and that therefore, the check slip issued under Section 37(4) of the Act is not proper and the order of the lower Court is not tenable one.

10. The relevant observations in the foregoing decisions are as follows : In Sundara Mudali v. Daivasikamani Mudali, 1931 AIR(Madras) 94, it is observed as follows :

"What Court has to see is the substance of the plaint and not the mere form. The presence or absence of a prayer in a particular form is immaterial when the relief has been substantially claimed in the body of