When a dispute is raised under section 12(2) of the Court Fees and Suit Valuation Act regarding the pecuniary jurisdiction of the court, it must be tried as a preliminary issue, and the court must follow the procedure under section 12(2) of the Act.

Heard both sides

2. The 2nd defendant in O.S.No.340 of 2009, on the file of the I Additional District Munsif, Kuzhithurai, is the revision petitioner.

3. The above suit O.S.No.340 of 2009 was filed by the respondents 2 and 3 herein against the revision petitioner and the first respondent herein for declaration of title of the plaintiff in respect of Item No.1 and 2 of the plaint schedule property and for consequential injunction. The plaintiffs valued the suit under section 25(b) of the Tamil Nadu Court Fees and Suit Valuation Act and paid the court fee. The revision petitioner after filing the statement filed an application under section 151 CPC in I.A.No.402 of 2009 stating that the plaint has not been properly valued and the court has no pecuniary jurisdiction to try the case and therefore, that has to be decided as a preliminary issue. The case of the revision petitioner was that the suit properties are worth more than 6,92,135/- and the plaintiff is not in possession of the property and if the correct market value of the suit property is taken into consideration, the District Munsif Court has no jurisdiction to entertain the suit and therefore, that issue has to be decided as a preliminary issue.

4. The plaintiffs contested the application stating that the application is not maintainable and the jurisdiction point is a mixed question of fact and law and as such, the same cannot be decided as a preliminary issue and the court has to number the suit on the basis of the valuation given in the plaint and if the defendants raised any dispute regarding the valuation of the property, an issue can be framed to that effect and the same can be tried along with other issues and it cannot be tried as a preliminary issue. The lower Court held that the issue of jurisdiction of court fee is not a pure question of law and it cannot be decided as preliminary issue as it requires evidence to be adduced on either side and following the judgments reported in (2000)3 MLJ 342, in the case of M.Thandavaraya Poosalai and five others vs. M.Periyasamy Asari and nine others and (2008)1 MLJ 75, in the case of A.Chinnaraj and another vs. Saroja Ammal, dismissed the application and aggrieved by the same, this civil revision petition is filed by the 2nd defendant.

5. Mr.S.Meenakshi Sundaram, the learned counsel appearing for the revision petitioner submitted that the lower Court failed to appreciate the distinction between the application filed under Order 14 Rule 2, to decide the preliminary issue and an application filed under section 12(2) of the Tamil Nadu Court Fees and Suit Valuation Act and when an application is taken by the defendant under Order 14 Rule 2 to decide the jurisdiction of the court as a preliminary issue, this court has consistently held that the issue of pecuniary jurisdiction is a mixed question of fact and law and cannot be decided as a preliminary issue and it can be tried along with other issues. Further, he fairly conceded that the court has to take into consideration the valuation of the plaint, while numbering the suit but he makes a distinction by stating that once the defendant filed the application under section 12(2) of the Tamil Nadu Court Fees and Suit Valuation Act, a duty is cast upon the court to decide the preliminary issue regarding the pecuniary jurisdiction of the court and that cannot be postponed to be tried along with other issues.

6. In support of his contention, the learned counsel appearing for the revision petitioner relied upon judgment of this Court reported in 2002(2) CTC 513, in the matter of V.R.Gopalakrishnan vs. Andiammal. He also relied upon the judgment of the Honourable Supreme Court reported in (1988)2 SCC 575, in the case of Abdul Hamid Shamsi vs. Abdul Majid and others and (1980)1 SCC 616, in the case of Meenakshisundaram Chettiar vs. Venkatachalam Chettiar, in support of his contention.

7. Mr.K.Sreekumaran Nair, the learned counsel appearing for the respondents submitted that this