M.Y. EQBAL, C.J.,

In view of the conflicting decisions of this Court on the issue as to “whether payment of court fee on the plaint being a jurisdictional issue has to be decided as a preliminary issue”, the matter has been referred to the file of the Chief Justice for constituting a larger bench in order to settle the law.

2. Since all the decisions on this issue have been rendered by learned single Judges of this Court, the matter has been listed before the Division Bench for answering the reference.

3. In the order of reference, the learned single Judge has pointed out the conflicting views taken by different courts, which can be summarized hereinbelow.

4. In one set of decisions, viz. 2003 (1) C.T.C. 87, 2003 (4) C.T.C. 268, 2005 (2) T.L.N.J. 102, 2008

(1) M.L.J. 75, the learned Judges held that the issue of court fee and valuation cannot be decided as a preliminary issue. Whereas, in another set of decisions, viz. 2001 (2) C.T.C. 411, 2002 (2) C.T.C. 513 and 2006 (5) C.T.C. 341, the learned Judges held that the question of court fee can be decided as a preliminary issue. It would be appropriate to discuss these cases decided by the learned single Judges.

5. The first category of decisions are discussed hereunder :-

i) In the case of E. Pushpalatha vs. C. Shanmughasundaram reported in 2003 (1) C.T.C. 87, a suit for partition, the defendant raised an objection to the effect that the market value of the suit property is Rs.93,000/-, which would be beyond the pecuniary jurisdiction of the trial court. The defendant/petitioner filed a petition to take up the issue regarding pecuniary jurisdiction as a preliminary issue. Although the learned single Judge took notice of the provisions of Section 12(2) of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 (in short, “the State Act”), proceeded on the basis of the provisions contained in Order XIV, Rule 2 of the Code of Civil Procedure and held thus :-

“15. The above provisions would provide a mandate on the Court that notwithstanding that a case may be disposed of on a preliminary issue, the Court has to pronounce judgment on all the issues. The only exception to this is contained in Sub-rule (2). This sub-rule also relaxes the mandate to a limited extent by conferring a discretion upon the Court. Therefore, it is for the trial Court to decide the jurisdictional issue, which is a mixed question of law and fact and such an issue is not required to be answered as preliminary issue.”

ii) In the case of Solaiammal vs. Rajarathinam reported in 2003 (4) C.T.C. 268, in a suit for declaration and permanent injunction, the defendants in their written statement disputed the valuation of the suit properties given in the plaint and by filing a separate application contended that the District Munsif has no pecuniary jurisdiction, and prayed to the Court to decide the valuation and pecuniary jurisdiction of the Court of District Munsif as the preliminary issue. The said application was opposed by the plaintiff on the ground that the issue with regard to valuation cannot be decided as a preliminary issue. The learned single Judge elaborately discussed the provisions of Order XIV, Rule 2, C.P.C. prior to and after the amendment made therein. The learned single Judge held that the question with regard to deciding an issue as a preliminary issue is purely discretionary and not mandatory and observed as under :

“17. We may at once point out that even in cases relating to valuation, there might be instances of cases which require factual enquiry about the Market Value and that issue cannot be tried as Preliminary Issue. Where the valuation involves enquiry, recording of evidence, involving consideration of law and facts, in those cases issue of valuation cannot be determined in isolation as Preliminary Issue. Necessarily in those, cases valuation and question of Pecuniary Jurisdiction would have to be determined with the rest of the issues.

18. .…. In the instant case, the valuation is