ORDER :

P.B. BALAJI, J.

The revision petitioners are defendants in O.S.No.732 of 2010.

1. The said suit has been filed for a relief of declaration and delivery of possession. Some of the defendants took out an application to reject the plaint on the ground of limitation. The said Application under Order VII Rule 11 CPC was dismissed holding that limitation was a mixed question of law and facts and can be decided only after Trial. Thereafter, Trial commenced and on the side of the plaintiffs and P.W.1 was examined. In the course of cross examination, P.W.1 has admitted that the cost of the building in the suit property alone would be of a value of Rs.1,50,00,000/- and also admitted that the land cost on the date of filing of the suit was above Rs.4.5 crores.

2. Taking advantage of such admissions made by P.W.1, the defendants took out an Application to return the plaint under Order VII Rule 10 CPC to be presented before the proper Court, after making up the deficit Court fee. The said Application was initially allowed by the Trial Court as against which the appellants filed C.M.A.No.38 of 2017 before the learned III Additional District Judge, Coimbatore. The said CMA came to be allowed holding that the Trial has commenced and the provisions of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 would prevail over Code of Civil Procedure, 1908 and having already filed a petition to decide the issue of valuation and insufficient Court fee at the preliminary stage, they cannot make use of the provisions of the Order VII Rule 10 CPC to return the plaint, that too, after trial has commenced. Challenging the same, the present revision petition has been filed by the petitioners.

3. I have heard Mr.L.Mouli, learned counsel for the petitioners and Mr.Krishnakumar for M/s. Sarvabhauman Associates, learned counsel for the respondents 1 to 21.

4. The learned counsel for the petitioners, Mr.L.Mouli would contend that the First Appellate Court has not considered the scope of the provisions of the Order VII Rule 10 CPC which enable the Court to return the plaint, to be presented to the Court in which the suit should have been instituted in the first instance and that such power can be exercised at any stage of the suit. He would further state that the First Appellate Court has not even discussed, the admission of P.W.1 regarding the value of the property land and building which was clearly pointing to the fact that the suit was undervalued and further the Court trying the suit did not have the pecuniary jurisdiction to try the same, in the first place.

5. The learned counsel for the petitioners would further state that even if the defendants had not taken out an Application under Section 12 of the Tamil Nadu Court Fees and Suit Valuation Act, yet they were not precluded from filing an Application under Order VII Rule 10 CPC, when P.W.1 had admitted that the value of the suit was far above the pecuniary jurisdiction of the Court trying the suit. He would further state that the judgment of the First Appellate Court holding that these issues would be tried after recording evidence and at the time of passing judgment, would only be a futile exercise, besides also wasting with respect to the valuable judicial time. He would therefore pray for the Civil Revision Petition being allowed.

6. Per Contra, Mr.Krishnakumar learned counsel for the respondents 1 to 21 /plaintiffs would submit that the Trial Court had erroneously ordered return of the plaint without considering the fact that the defendants had not raised the issue of improper valuation and insufficient Court fee at the earliest point of time and he would also rely on the decision of the Hon’ble Division Bench of this Court in S.N.S.Sukumaran Vs. C.Thangamuthu, reported in 2012-5-L.W.197, where the Hon'ble Division Bench of this Court, held that Section 12 of the Tamil Nadu Court Fees and Suits Valuation Act 1955, though being inconsistent with the provisions of under Order XIV Rule 2 CPC would p