IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 11TH FEBRUARY 2010 / 22ND MAGHA 1931 WP(C).No. 2933 of 2005(Y) ------------------------- {OS.138/2002 OF THE SUB COURT, NEYYATTINKARA} .................... PETITIONER(S): --------------- 1. DILIPKUMAR, S/O.SIVANANDA PANICKER, `KULIRMA', KARIKKAMANCODE, ANAVOOR, THIRUVANANTHAPURAM. 2. RADHAKUMARI, D/O.CHELLAMMA, RESIDING AT DO. DO. BY ADV. SRI.J.HARIKUMAR SRI.HARIKUMAR.S. RESPONDENT(S): --------------- 1. MARY MATHA EDUCATIONAL SOCIETY, REG.NO.T.284/97, OOLATHANNI, REPRESENTED BY ITS CHAIRMAN WILSON, S/O.LAZAR NADAR, AVIKUZHI VEEDU, OOLATHANNI, KADAVATTARAM DESOM, NEYYATTINKARA VILLAGE. 2. CHRISTHU DAS DHARMARAJAN, DOCUMENT WRITER, SUB REGISTRAR OFFICE, PARASSALA, RESIDING AT CHRISTILLA, VATTAVILA, KEEZHKOLLA DESOM, CHENKAL PAKUTHY, THIRUVANANTHAPURAM DISTRICT. 3. PERUMBANAYAKAM PUSHPAM OF DO. DO. ADV. SRI.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE FOR R1 SRI.G.P.SHINOD FOR R3 SRI.RAMMOHAN.G FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 2933 of 2005 :: 2 :: APPENDIX PETITIONERS' EXHIBITS: EXT.P1: TRUE COPY OF THE PLAINT DATED 13.8.2002 IN O.S.NO.138 OF 2002 PENDING BEFORE THE SUB COURT, NEYYATTINKARA. EXT.P2: TRUE COPY OF THE WRITTEN STATEMENT DATED 30.10.2002. EXT.P3: TRUE COPY OF THE PLAINT DATED 20.12.2002 IN O.S.964/02. EXT.P4: TRUE COPY OF THE JUDGMENT DATED 1.09.2003 OF THE MUNSIFF'S COURT, NEYYATTINKARA. EXT.P5: TRUE COPY OF THE PETITION DATED 4.05.2004. EXT.P6: TRUE COPY OF THE OBJECTION FILED BY THE PETITIONERS DATED 12.8.2004. EXT.P7: TRUE COPY OF THE AMENDMENT APPLICATION DATED 24.06.2004. EXT.P8: TRUE COPY OF THE OBJECTION DATED 18.8.2004 FILED IN I.A.NO.837 OF 2004 IN O.S.NO.138 OF 2002 OF THE SUB COURT, NEYYATTINKARA. EXT.P9: TRUE COPY OF THE ORDER DATED 1.12.2004 ON I.A.NO.837 OF 2004 IN O.S.NO.138 OF 2002 OF THE SUB COURT, NEYYATTINKARA. RESPONDENTS' EXHIBITS: NIL //true copy// P.S. To Judge SK/- S.S.SATHEESACHANDRAN, J. ---------------------------------------------------- W.P.(C)No.2933 of 2005 --------------------------------------------------- Dated this the 11th February, 2010 JUDGMENT Writ petition is filed seeking the following reliefs: "(i) To call for records leading to Exhiit P9 order and to issue an appropriate writ, order or direction, quashing the same. (ii) To issue an appropriate writ, order or direction, directing the Sub Court, Neyyattinkara to conduct a fresh and proper enquiry regarding the market value of the property involved in the suit onthe date of the suit in accordance with the provisions of the Kerala Court Fees and Suit Valuation Act. (iii) To grant such other reliefs as are deemed fit and proper in the interest of justice as well in the facts and circumstances of this case." 2. Petitioners are defendants 3 and 4 in O.S.No.138/02 on the file of the Sub Court, Neyyattinkara. The 1st respondent is the plaintiff and W.P.(C)No.2933 of 2005 :: 2 :: the other respondents co-defendants (defendants 1 and 4) in the suit. Suit is one for setting aside two registered documents, one of them executed in favour of the present petitioners, defendants 3 and 4 by the other defendants (defendants 1 and 2) and the other prior document under which defendants 1and 2 had obtained title over the property. After the present petitioners/defendants 3 and 4 filed their written statement disputing the suit claim, in which among other contentions, they also disputed the maintainability of the suit. The plaintiff along with the other defendants 1 and 2 together filed a petition for recording the compromise entered by them permitting the plaintiff to proceed with the suit recording such compromise. Amendment of the plaint was also sought for on the basis of the settlement arrived between the plaintiff and defendants 1 and 2 in which among other averments to be modified in the plaint reduction in the valuation of the suit and the court fee payable was also sought for. W.P.(C)No.2933 of 2005 :: 3 :: Previously, the suit was valued at Rs.13,24,875/-, value shown in the registered document impeached, and court fee was paid on such valuation. It is submitted that 1/10th of the valuation of the suit, at the time of filing the suit under Section 4A of the Court Fees Act alone had been paid by the plaintiff and the rest of the court fee remains to be paid. Under the amendment, the valuation of the suit was sought to be reduced to Rs.2 lakhs and the court fee on such valuation was assessed for sustaining the claim. Defendants 3 and 4 filed their objections to that application contending that the amendment sought for on the basis of the settlement arrived at by the plaintff and defendants 1 and 2 cannot be allowed. Ext.P7 is the copy of the amendment application and Ext.P8 is the objections filed by the petitioners/defendants 3 and 4. The learned Sub Judge, after hearing both sides, allowed Ext.P7 amendment application by Ext.P9 order. Propriety and correctness of that order is challenged in the writ petition, invoking W.P.(C)No.2933 of 2005 :: 4 :: the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. 4. The proposed amendment canvassed by the plaintiff and allowed by the court vide Ext.P9 order, it is submitted by the learned counsel for the petitioners (defendants 3 and 4), cause serious prejudice to the defendants. At any rate, after valuing the suit at a higher rate, the plaintiff could not have been permitted to have a reduced valuation for establishing his suit claim, is the submission of the learned counsel for the petitioners. 5. On the other hand, learned counsel appearing for the 1st respondent/plaintiff and also respondents 2 and 3 – defendants 1 and 2, contended that no prejudice has been caused to the plaintiff by the amendment allowed under Ext.P9. At any rate, payment of court fee is a matter between the plaintiff and the State-Revenue and the defendants cannot be aggrieved W.P.(C)No.2933 of 2005 :: 5 :: by the order of the court in permitting the plaintiff to reduce the valuation of the plaint, is the submission of the counsel appearing for respondents 2 and 3. 6. Perusing Ext.P9 order, I find that none of the objections raised by petitioners/defendants 3 and 4 have been taken into account, nor the legal principles applicable while allowing Ext.P7 application moved by the plaintiff. In fact, it is noticed that the court below has brushed aside the objections canvassed by defendants 3 and 4 as baseless without expressing any reason why it is held to be so. 7. Perusing Ext.P8 objections filed by the petitioners, I find application of mind on such objectiolns was absolutely necessary before disposing of Ext.P7 application. Failure to do so amounts to abdication of the jurisdiction of the court in disposing Ext.P7 application in accordance with law. 8. I do not wish to express any opinion on the merits of Ext.P7 application, but all the same, it has W.P.(C)No.2933 of 2005 :: 6 :: to be pointed out that when an amendment of the plaint is sought for, after showing the valuation of the suit on a higher side, for its reduction, the court has to examine whether there is retraction of an admission given in the plaint on that aspect, apart from other principles also in judging the merit of the amendment. Ext.P9 order is set aside. The court below is directed to consider Ext.P7 application afresh, with reference to Ext.P8 objections canvassed by the petitioners/defendants 3 and 4, taking note of the observations made above and in accordance with law. Writ petition is disposed of as above. Sd/- (S.S.SATHEESACHANDRAN) JUDGE sk/- //true copy//