S. Vimala, J.

1. This Application has been filed by the second defendant in C.S. No. 733 of 2008 seeking direction to the plaintiff to correct the valuation of the suit in the plaint and to pay requisite ad-valorem court fee on such corrected valuation and in the event of failure to reject the plaint. The plaintiff is the first respondent and defendants 1 and 3 are respondents 2 and 3.

2. This application has been filed on two grounds, viz., that (a) the plaintiff has undervalued the suit property and the plaintiff, as D.W. 1, in TOS No. 3 of 2009, has admitted that the valuation of the suit property (Royapettah house property) (Schedule-A) is worth more than 4 crores; and (b) the plaintiff has admitted that he is not in joint possession of plaint A, B and C schedule properties.

3. The suit has been filed by the plaintiff in C.S. No. 733 of 2008 seeking the relief of partition and separate possession. The Court fee has been paid under Section 37 (2) of the Tamil Nadu Court Fees and Suit Valuation Act, 1955 (hereinafter will be referred to as "the Act") on the pretext that the plaintiff is in joint possession of the property.

4. The contention of the learned counsel for the Applicant/D-2 is that the Court fee ought to have been paid under Section 37 (1) of the Act, as the plaintiff has admitted that he is not in joint possession.

4.1. In view of the contention raised, there are only two issues to be considered in this Application, viz.,

1. Whether there is an admission by the plaintiff that he is not in joint possession of the suit property?

2. Whether there is any material on record to come to the conclusion that the suit property has been under valued?

4.2. The learned counsel for the Applicant pointed out the two provisions available, i.e., one under Order 7 Rule 11 CPC providing for rejection of plaint, in case when the relief claimed is under-valued and despite the opportunity given by the Court to pay the deficit court fee, there is non-compliance on the part of the plaintiff and the other provision is under Order 2 Rule 3 of the Madras High Court Original Side Rules, which is in pari materia with Order 7 Rule 11 (b) of the Code of Civil Procedure, under which when a suit is under-valued the Court may require the plaintiff to make good the deficiency failing which it is open to the Court to dismiss the suit. The two provisions are extracted here-under for convenient reference:-

Order 2 Rule 3 of the Madras High Court Original Side Rules, 1994:-

"If during the hearing of a suit, it appears to the Court that the suit is undervalued or that the stamp affixed to the plaint is insufficient, the Court may require the plaintiff to make good the deficiency within a time fixed by it and in default dismiss the suit."

Order 7 Rule 11 (b) of the CPC:-

"11. Rejection of plaint.-The plaint shall be rejected in the following cases:-

(a).....

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;

(d)....... "

4.3. Out of these two provisions, which will prevail is the issue next raised in this Application.

4.4. The learned counsel for the Applicant referred to various provisions under Part X of the CPC (Sections 121 to 131 of CPC) which speak on rules. Sections 121, 122, 129 and 131 of the CPC read thus:-

"121. Effect of Rules, in First Schedule:-The rules in the First schedule shall have effect as if enacted in the body of this Code until annulled or altered in accordance with the provisions of this Part."

"122. Power of High Court to make rules:-High Courts not being the Court of a Judicial Commissioner may, from time to time after previous publication, make rules regulating their own procedure and the procedure of the Civil Courts subject