This Civil Revision Petition is against the order of the learned first Assistant City Civil Judge, appointing a Commissioner directing him to find out the market value of the suit property in O.S. No. 1853 of 1955 on the file of this Court. The suit is for eviction of the defendant from the property. The defendant filed his written statement, but in the written statement he did not raise the question of inadequacy of the Court-fee paid for the suit. After the written statement having been filed, in a petition supported by an affidavit, the defendant raised an issue with regard to the proper Court-fee for the suit. After hearing the parties, the learned First Assistant City Civil Judge appointed a Commissioner to find out the market value of the suit property. In this Civil Revision Petition objection is taken by the plaintiff that the defendant, not having pleaded in his written statement that the Court-fee paid was inadequate, was precluded from raising the plea with regard to inadequacy of the Court-fee paid in a petition supported by an affidavit.

Mr. Jagadisa Ayyar, appearing on behalf of the petitioner-plaintiff, relies upon the language of section 12, clause (2) of Madras Act XIV of 1955. That section is to the effect that any defendant may, by his written statement filed before the first hearing of the suit, or before evidence is recorded on the merits of the claim, plead that the subject-matter of the suit has not been properly valued, or that the fee paid is not sufficient The word used is “plead” and the learned counsel for the petitioner contends that a petition supported by an affidavit cannot be a “pleading” and that it is not covered by the language of that section. But in my opinion it is too much of a straining of the term “plead” to say that the course adopted by the Respondent is not “pleading”. It is true that, an opportunity was available to the defendant to raise the question of adequacy of Court-feepaid, when the written statement was filed, but that opportunity was not availed of The question is whether that opportunity not having been availed of, the defendant would be precluded from pleading at a later stage as provided for in the section relied on that the Court-fee paid by the plaintiff is inadequate. If the written statement alone is to be considered pleading, then certainly the language used in section 12, clause (2) of Madras Act XIV of 1955, that:

“any defendant may, by his written statement filed before the first hearing of the suit or be/ore evidence is recorded on the merits of the claim, plead that the subject-matter of the suit has not been properly valued, or that the fee paid is not sufficient”,

has no meaning. The section provides for opportunities being made available to the defendant even after he has filed his written statement and before evidence is recorded to “ plead” that the Court-fee is not adequate. Some significance must be attached to this. But Mr. Jagadisa Ayyar argues that by that term pleading, after the written statement is filed and before evidence is recorded, would be only by means of an application for amending the written statement and then by means of such an amended written statement raising the question of inadequacy of Court-fee paid. In this case that procedure has not been adopted and it is urged that the language of the section does not warrant a separate petition for raising the issue as to Court-fee. On the other hand, what has been done by the defendant is that he went to the Court by way of an application or petition supported by an affidavit raising the question of inadequacy of Court-fee paid. I do not think that the learned counsel for the petitioner is right in contending that if the defendant fails to avail of the opportunity given to him to raise the question of Court-fee in his written statement or if he has not asked for an amendment of the written statement in order to enable him to raise the question of inadequacy of Court-fee, he is preclud