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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE S. PALANIVELU
M. Amirtham & Others
Versus
N. Venugopal & Others
C.R.P. (NPD) No. 2339 of 2009 & M.P. No. 1 of 2009
Decided on: 14-08-2009
(B)Code of Civil Procedure, 1908(5 of 1908)-Or.II, VII- Partition-Practice and procedure-Pleadings-Final decree-In the suit for partition, there is no necessity to incorporate a separate prayer for final decree in the plaint itself and after the passing of preliminary decree, separate petition may be filed in this regard.
In the considered view of this Court, even if the prayer for final decree for partition is absent in the prayer column, after the passing of the preliminary decree there is no bar for plaintiffs to initiate proceedings for passing of final decree and they may file necessary application. Hence, there is no necessity to incorporate the prayer as to passing of the final decree. Para 4
(C)T.N. Court fees and suit valuation Act, 1955 (14 of 1955)-Sec.44-Partition-Mesne profit-Court fee-Plaintiff need not pay court fee for the prayer of mesne profit at the time of filing of the suit. It is payable only on its ascertainment by the Court
Insofar as the question of payment of Court fee, the same could not be ascertained at the time of filing of the plaint. The mesne profits would be ascertained by the Court on future occasion and there is no need and requirement for the plaintiffs to pay Court fee under Section 44 (1) of Tamil Nadu Court Fees and Suit Valuation Act 1995, since the mesne profits are not ascertainable. Para 5
1. The petitioners/plaintiffs filed Suit before the Subordinate Judge, Cheyyar for partition. The Court below retuned the plaint by stating that there is no prayer for final decree, and that the Court-fee was not paid for the second relief i.e., mesne profits under Section 44(1) of Court-fee Act.
2. Learned counsel for the petitioners represented the plaint with endorsement referring Lakshmi Ammal and others v. Subbaraj and others, AIR 1975 Mad. 208, and submitted that the Court-fee in respect of future mesne profits in the plaint need not be paid.
3. On 112. 2008 the learned Subordinate Judge, Cheyyar, again returned the Plaint by stating that in the above judgment there was no prayer for future means profit, while in this case there is a prayer for future means profit.
4. In the considered view of this Court, even if the prayer for final decree for partition is absent in the prayer column, after the passing of the preliminary decree there is no bar for plaintiffs to initiate proceedings for passing of final decree and they may file necessary Application. Hence, there is no necessity to incorporate the prayer as to passing of the final decree.
5. Insofar as the question of payment of Court-fee, the same could not be ascertained at the time of filing of the plaint. The mesne profits would be ascertained by the Court on future occasion and there is no need and requirement for the plaintiffs to Court-fee under Section 44(1) of Tamil Nadu Court Fees and Suit Valuation Act, 1995, since the mesne profits are not ascertainable. Section 44(1) goes to the effects that if the profits ascertained to be due to the plaintiff are in excess of the profits as approximately estimated and sued for, no decree shall be passed until the difference between the fee actually paid and the fee that would have been payable had the said comprised the whole of the profits so ascertained is paid.
6. In this regard there is no necessity for the plaintiffs for the present to pay Court-fee. However, the question with regard to maintainability is kept open to be agitated before the Trial Court.
7. In the result, the Civil Revision petition is allowed. The learned Subordinate Judge, Cheyyar is directed to take the plaint to file, if otherwise in order. No costs. Connected M.P. is closed.
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