IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 26TH JUNE 2008 / 5TH ASHADHA 1930 CRP.No. 1073 of 2007() ---------------------- OS.1473/2004 of I ADDL.M.C.,ERNAKULAM .................... REVN. PETITIONER: REVIEW PETITIONER/PLAINTIFFS. ---------------------- 1. MRS.MINITA DAPHNE NETTO, W/O.RUDOLF NETTO, AGED 52, RESIDING AT BUILDING NO.CC 40/4724 LATER 40/5000, ERNAKULAM VILLAGE, BANERJI RAOD, ERNAKULAM KOCHI-31. 2. RUDOLF NETTO,S/O.LATE ANTONY NETTO, AGED 56 YEARS, RESIDING AT BUILDING NO.CC 40/4724 LATER 40/5000, ERNAKULAM VILLAGE, BANERJI RAOD, ERNAKULAM KOCHI-31. BY ADV. SRI.P.F.THOMAS (SR.) SRISHIJU VARGHEESE SRI.C.S.YESUDAS RESPONDENTS: ------------- 1. MRS.MARGET BENEDICT RODRIGUES, W/O. GOGI RODRIGUES,, AGED 54, RESIDING AT LEONS APARTMENT, OPPOSITE SARITHA THEATRE, BANERJI ROAD, ERNAKULAM. 2. INFANT JESUS CHURCH, BROADWAY ERNAKULAM, REPRESENTED BY ITS PARISH PRIEST, FR.JOSE PADIARINAPARAMBIL,AGED 60, RESIDING PAROCHIAL HOUSE, INFANT CHURCH,BROADWAY ERNAKULAM. 3. JOSEY D;SILVA, AGED ABOUT 68, RESIDING AT BANERJI ROAD, KAIKKAR, OPPOSITE CRYSTAL PALACE, BANERJI ROAD, ERNAKULAM. 4. IGNATIOUS ALWIN, AGED ABOUT 76, KAIKKAR, ST.ALBER;S LANE, BANERJI ROAD, ERNAKULAM. BY ADV. SRI.K.L.JOSEPH FOR R2 SMT.P.SAREENA GEORGE FOR R2 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 26/06/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ORDER ON I.A.NO.3070/2007 IN CRP.NO.1073/2007 DISMISSED 26.6.2008 SD/= (M.SASIDHARAN NAMBIAR, JUDGE.) //TRUE COPY// P.A. TO JUDGE. M.SASIDHARAN NAMBIAR, J. ------------------------------- C.R.P.No.1073 of 2007 ------------------------------- Dated this the 26th June, 2008. O R D E R Petitioners are the plaintiffs and respondents the defendants in O.S.No.1473 of 2004, on the file of Additional Munsiff Court, Ernakulam. The suit is for declaration of Kudikidappu right which originally belonged to the uncle of the petitioners. The court fee was paid valuing relief-A at Rs.10,000/= and for relief-B at Rs.500/=. For the latter court fee was paid under Section 27(c) of Kerala Court Fees and Suits Valuation Act (for short 'the Act'), being the consequential relief of injunction. For the former relief, court fee was paid under Section 25 of the Act without specifying under which sub-section stating that market value of the property as valued in probate O.P. at Rs.10,000/=. Learned Munsiff considered the question of sufficiency of court fee under Issue No.1 and as per order dated, 31.10.2007, directed plaintiff to amend the valuation for the purpose of court fee and jurisdiction, based on the report submitted by the Commissioner. It is challenged in this revision petition filed under Section 115 of Code of Civil Procedure. 2. The learned counsel appearing for petitioners and respondents were heard. CRP.No.1073/2007 2 3. When suit is for declaration, court fee has to be paid either as provided under Section 25 or Section 26 of the Act. Section 26 applies only to a suit for declaration in regard to the validity or invalidity of an adoption or the factum of an adoption, and has no application to the present suit. Section 25 provides for court fee in a suit for declaratory decree or order, whether with or without consequential relief. Under clause (a), where prayer is for declaration and for possession of the property, court fee is to be paid as provided thereunder. Under clause (b), where the prayer is for declaration and for consequential injunction, and the relief sought for is with reference to any immovable property, fee shall be computed on one half of the market value of the property or on Rs.1000/= whichever is higher. Under clause (d), in all other cases, where the subject matter of the suit is capable of valuation, fee shall be computed on the market value of the property under sub-clause (i), and where the subject matter of the suit is not capable of valuation, fee shall be paid on the amount at which relief sought is valued in the plaint, or on Rs.1000/= whichever is higher, under sub-clause (ii). 4. The argument of the learned counsel appearing for the petitioner is that court fee is payable only as provided under Section 25(d)(ii) of the Act, and court fee was paid as per the CRP.No.1073/2007 3 valuation adopted by the court in the probate O.P. I cannot agree with the submission. If the suit is for declaration and for consequential injunction with reference to any immovable property, fee has to be computed as provided under Sub-section (b) of Section 25 and the court fee is payable on one half of the market value of the property. Market value is to be fixed as provided under Section 7. Even if it is taken that Section 25(b) does not apply and court fee is to be paid as in other cases provided under sub-section (d) of Section 25, it cannot be said that subject matter of the suit is not capable of valuation. It is definitely capable of valuation. In that case, court fee is to be paid as provided under Section 25(d)(i) of the Act. Unfortunately, the learned Munsiff did not consider these aspects and has only directed to amend the plaint and to pay the court fee. In such circumstances, order dated 31.10.2007 is quashed. The learned Munsiff is directed to re- consider issue No.1 and decide on what head the suit is to be valued and court fee is to be paid, and pass appropriate orders, in accordance with law. M.SASIDHARAN NAMBIAR, JUDGE nj.