MOHD ABDUL BASHEER Vs. N SOBHANADRI
LAWS(APH)-1976-3-26
HIGH COURT OF ANDHRA PRADESH
Decided on March 24,1976

MOHD.ABDUL BASHEER Appellant
VERSUS
N.SOBHANADRI Respondents

JUDGEMENT

- (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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