IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.CHITAMBARESH THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 WP(C).No. 7311 of 2009(O) ------------------------- OS.442/2007 of PRL.M.C.KOZHIKODE-I .................... PETITIONER(S): --------------- P.K.SREEDHARAN, S/O.CHATHU, AGED 72 YEARS, PANAKKATTU KUZHIYIL VEEDU, KURUVATTOOR AMSOM, PAYIMBRA DESOM, KOZHIKODE TALUK. BY ADV. SRI.R.SUDHISH SMT.M.MANJU RESPONDENT(S): --------------- 1. RAGHAVAN, AGED 78 YEARS, S/O.KORAPPAN, PANAKKATTU KUZHIYIL VEEDU, KURUVATTOOR AMSOM, PAYIMBRA DESOM, KOZHIKODE TALUK. (DIED). 2. PREMA, W/O.PANNAKKATTUKUZHI RAJAN, AGED 46 YEARS, PANAKKATTU KUZHIYIL VEEDU, KURUVATTOOR AMSOM, PAYIMBRA DESOM, KOZHIKODE TALUK. 3. RENJITH, S/O.RAJAN, AGED 24 YEARS, PANAKKATTU KUZHIYIL VEEDU, KURUVATTOOR AMSOM, PAYIMBRA DESOM, KOZHIKODE TALUK. 4. BELJITH, S/O.RAJAN, AGED 22 YEARS, PANAKKATTU KUZHIYIL VEEDU, KURUVATTOOR AMSOM, PAYIMBRA DESOM, KOZHIKODE TALUK. 5. YASODHA, D/O.KORAPPAN, AGED 75 YEARS, ODANGAL VEEDU, PADANILAM P.O., KUNDAMANGALAM DESOM, KOZHIKODE TALUK. 6. KOUMUDI, D/O.KORAPPAN, AGED 74 YEARS, VAPPANOTTU VEEDU, PILASSERY P.O., KUNDAMANGALAM DESOM, KOZHIKODE TALUK. 7. PADMINI, D/O.KORAPPAN, AGED 64 YEARS, MANALOOR VEEDU, MADAVOOR AMSOM, MATTANCHERRY DESOM, KOZHIKODE TALUK. 8. SOUMINI, D/O.KORAPPAN, AGED 63 YEARS, KUTHUKKUDI HOUSE, KURUVATTOOR AMSOM, PAYIMBRA DESOM, KOZHIKODE. 9. RADHA @ PANCHALI, D/O.KORAPPAN, AGED 62 YEARS, WEST HILL P.O., PUTHIYANGADI AMSOM DESOM, KOZHIKODE. 10. SUNDANDA, D/O.KORAPPAN, AGED 59 YEARS, KANDAKULATHIL VEEDU, PARAMBIL P.O., KURUVATTOOR AMSOM, PAYIMBRA DESOM, KOZHIKODE TALUK. ADDL.R11 KARTHIYAYINI, AGED 69 YEARS, W/O. LATE RAGHAVAN, MANNARAKKANDI, PANAKKATHU KUZHIYIL VEEDU, PAYAMBRA DESOM, KOZHIKODE TALUK. ADDL. R12 GEETHA, AGED 49 YEARS, D/O. LATE RAGHAVAN, CHINGACHAM HOUSE, PUNNATHOTTIYIL, PAYAMBRA DESOM KOZHIKODE TALUK. ADDL. R13. BABU, AGED 46 YEARS, S/O. LATE RAGHAVAN MANNARAKKANDI, PANAKKATTU KUZHIYIL VEEDU, PAYAMBRA DESOM, KOZHIKODE TALUK. ADDL. R14 GIREESAN, AGED 43 YEARS, S/O. LATE RAGHAVAN MANNARAKKANDI, PANAKKATTU KUZHIYIL VEEDU, PAYAMBRA DESOM, KOZHIKODE TALUK. ADDL. R15 REETHA, AGED 36 YEARS, D/O. LATE RAGHAVAN MANNARAKKANDI, PANAKKATTU KUZHIYIL VEEDU PAYAMBRA DESOM, KOZHIKODE TALUK. NOW RESIDING AT VEVUKATTIL, NADUMANDIYIL, PAYAMBRA DESOM, KOZHIKODE. LEGAL HEIRS OF DECEASED R1 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 11 TO 15 AS PER ORDER DATED 04.11.2009 IN I.A. NO. 13561/2009. ADV. SRI.K.M.FIROZ FOR R1 - R10 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 7311 OF 2009 APPENDIX PETITIONER'S EXHIBITS EXHIBIT P1 : TRUE COPY OF THE PLAINT IN O.S. NO. 442/2007 ON THE FILES OF THE PRINCIPAL MUNSIFF COURT I, KOZHIKODE. EXHIBIT P2 : TRUE COPY OF THE E.P. 103/2001 IN I.A. 1335/1988 IN O.S. 244/1984 OF SUB COURT, KOZHIKODE. EXHIBIT P3 : TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE RESPONDENTS. EXHIBIT P4 : TRUE COPY OF THE FINAL DECREE ORDER IN I.A. 1335/1988 IN O.S. 244/1984. EXHIBIT P5 : TRUE COPY OF THE COMMISSIONER'S REPORT AND PLAN DATED 27.11.1997. EXHIBIT P6 : TRUE COPY OF THE DOCUMENT NO. 2395/2006. EXHIBIT P7 : TRUE COPY OF THE AFFIDAVIT IN SUPPORT OF THE PETITION I.A. 3906/2008 IN O.S. 442/2007 FILED BY THE RESPONDENTS. EXHIBIT P8 : TRUE COPY OF THE COUNTER FILED BY THE PETITIONER IN I.A. 3906/2008 IN O.S. 442/2007. EXHIBIT P9 : TRUE COPY OF THE ORDER DATED 04.02.2009 I.A. 3906/2008 IN O.S. 442/2007 OF PRL. MUNSIFF COURT I, KOZHIKODE. EXHIBIT P10 : TRUE COPY OF THE JUDGMENT DATED 04.02.2009 IN O.S. NO. 442/2007 OF PRL. MUNSIFF I, KOZHIKODE. /TRUE COPY/ P.A. TO JUDGE. V. CHITAMBARESH, J -------------------------------- WP(C) NO. 7311 OF 2009 ------------------------------------ Dated this the 24th day of November, 2011. JUDGMENT The plaintiff in a suit for declaration to set aside a document in part and for consequential injunction is the petitioner herein. Declaration was sought to the effect that allotment of one item of property under a partition deed (document No. 2395/2006) does not bind the plaintiff. A relief of setting aside that document in so far as it relates to that item of property was also sought. There is a prayer for consequential injunction restraining the defendants from entering into any portion of the property covered by the partition deed aforesaid. 2. The defendants contended that the suit is not properly valued under sub clause (a) and (b) of Section 25 of the Kerala Court Fees and Suits valuation Act. This is so in respect of the reliefs of declaration and consequential injunction eventhough court fee need be paid on the consideration shown in the document for the relief of setting it aside under Section 40 of the Act. The defendant contended 2 WP(C) No. 7311/2009 that fees shall be computed on the market value of the property or on Rs.1,000/- whichever is higher under Section 25 (a). The defendants also contended that the fees shall be computed on one-half of the market value of the property or on Rs.1,000/- whichever is higher under Section 25 (b). The defendants contended that the valuation of the suit is inadequate and that an enquiry on the sufficiency of the court fee payable is warranted. Section 19 of the Kerala Court Fees and Suits Valuation Act is as follows: Inquiry and commission -- For the purpose of deciding whether the subject matter of a suit or other proceeding has been properly valued or whether the fee paid is sufficient, the Court may hold such inquiry as it considers proper and may, if it thinks fit, issue a commission to any proper person directing him to make such local or other investigation as may be necessary and to report thereon to the Court and the Court may pass appropriate orders as to costs. 3. The Court below is therefore well competent to conduct an enquiry and issue a commission for the purpose of investigation as regards the market value. The court below has by Ext.P9 order framed a preliminary issue as regards the sufficiency of the court fees paid. The court below has also by Ext.P10 order directed steps to be taken to appoint a 3 WP(C) No. 7311/2009 commissioner to assess the value of the property for determining the court fee. The procedure adopted by the court below is well founded and does not suffer from any infirmity. The court below is yet to consider as to whether the valuation of the suit is proper and whether sufficient court fee has been paid by the plaintiff. The writ petition is premature and no rights of the defendants are effected by the orders impugned. Ext.P9 and P10 orders do not suffer from any error of jurisdiction and the writ petition is hence dismissed. V. CHITAMBARESH JUDGE dnc