JUDGEMENT
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(1.)This revision is filed by the plain
tiff-petitioner against the order dated
9th day of July, 1975, passed by the
third Assistant Judge, City Civil Court,
Hyderabad in S.R. No. 3264/75 appointing an advocate as Commissioner to
test the property to ascertain the market
value of it and to submit his report.
Further the plaintiff is directed to deposit
a sum of Rs. 75/- towards the commissioner's fee besides paying the process
by 16-7-1975. The learned Counsel for
the petitioner contended that even before
the suit is registered the lower court
ought not to have directed the appointment of the commissioner to ascertain
the market value of the suit property
and submit his report.
(2.)The suit is filed for possession of
suit schedule property and for mesne profits, for
damages or compensation for use
and occupation at the rate of Rs. 150/-
per month. The plaintiff also claimed
future mesne profits at the rate of
Rs.150/- per month from the date of the
suit till the actual delivery of possession.
It is alleged in the plaint, that the plaintiff is the absolute owner of the house
bearing 5-4-438, situated at Station
Road, Nampally, Hyderabad, having
purchased it for consideration. Subsequently the sale deed was filed into the
court, which is dated 8-7-1971 and the
consideration mentioned therein is
Rs.9,000/-. In para 9 of the plaint, the
value of the suit for purposes of jurisdiction is given as Rs. 8550/- Market
value of the suit house is Rs.9,000/-.
3/4th of it is Rs.6,750/- and Rs.1,800/-
for mesne profits from 14th March, 1974
to 14th February, 1975, for 12 months
(at the rate of Rs.150/- per month) and
the value is the same for court-fees.
Thus, a court-fee of Rs.446/- is paid for
the relief of possession and Rs.174/- for
mesne profits. A total court fee of
Rs.617/- is paid.
(3.)Along with the plaint, it
seems the petitioner filed a petition
under Order 38 rule 5 C.P.C. for
attachment before judgment. The
office took certain objections in respect of the payment of court-fees and
also the valuation of the suit property.
The order discloses that the Counsel for
the plaintiff complied with objections 1
and 2 on 4-7-1975. That is, he filled all
the columns in form No. 8 with particulars and also affixed the deficit court-fee
of Rs.l/- on the petition filed under Order 38 Rule 5 C.P.C. The third objection
raised by the office is with regard to the
present market value of the suit property.
The lower court heard arguments of the
counsel for the plaintiff on the third objection. The learned Counsel contended
that according to Section 11 (1) (a) of
the Andhra Pradesh Court Fees and Suits
Valuation Act of 1956 (herein after called the court Fees Act,)
in every suit the
court shall before ordering the plaint to
be registered decide on the allegations
contained in the Plaint and on the materials furnished by the plaintiff the
proper fee payable thereon and the same
would be subject to review from time to
time as occasion arises, under clause (b)
of Sub-section (1). It was also further
contended that under Sub-Section (2) of
section 11 of the Act, the defendant may
plead that the subject matter of the suit
was not properly valued or that the fee
paid was not sufficient and all such pleas
raised shall be heard and decided before
hearing of the suit as contemplated by
Order 18 C.P.C. He further contended
that without holding enquiry, the value
as fixed by the plaintiff could not beheld
to be incorrect. Further it was contended that when the commissioner was to
be appointed by the Court to test the
value of the property who should
be the person that should be bear
the costs of the commission and ultimately if the plaintiff is directed to pay how
that amount could be re-imbursed to
him, should have been considered by the
lower court. The learned Judge did not
dispute the correctness of the contentions
raised by the counsel for the plaintiff;
but what weighed with the lower court
was that the suit property was
purchased on 8-7-71 for Rs.9,000/-.
The suit was filed on 4-4-1975. Therefore, the value of the suit property must
definitely be more
than the value in the year 1957
because the court can 'take judicial
notice of the fact that the value of
the property in Hyderabad has been
increasing day by day. The lower
court negatived the contention of the
plaintiif that the Court has no power
to appoint a Commissioner at this
stage and held that the court is not
powerless when the plaintiff does not
furnish sufficient data showing the
market value of the suit property by
producing the sale deeds of the contemporary period such as the extracts
of the sale deeds etc. and that the
plaintiff has to bear the expenses for
the commission. Therefore, it held
that the Court has power to appoint
the commissioner even before the suit
is registered to ascertain the market
value of the suit property and to call
for his report.
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