IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 8TH FEBRUARY 2010 / 19TH MAGHA 1931 WP(C).No. 3873 of 2010(O) ------------------------- OS.583/2006 of MUNSIFF COURT, THIRUVALLA PETITIONER(S): 1. VALSAMMA JOHN, W/O.LATE JOHN THOMAS, PANANGATTU PATHINANCHIL, MEPRAL MURI, PERINGARA VILLAGE, THIRUVALLA TALUK. 2. JINNY J.GEORGE, S/O.LATE JOHN THOMAS, PANANGATTU PATHINANCHIL, MEPRAL MURI, PERINGARA VILLAGE, THIRUVALLA, REPRESENTED BY POWER OF ATTORNEY HOLDER, BROTHER JUBIN J.GEORGE. 3. JUBIN J.GEORGE, S/O.LATE JOHN THOMAS, PANANGATTU PATHINANCHIL, MEPRAL MURI, PERINGARA VILLAGE, THIRUVALLA. 4. VARGHESE P.THOMAS, 'ARADHANA', THATTARATH LANE, PALARIVATTOM, COCHIN-25. 5. THOMAS GEORGE, PANANGATTU PATHINANCHIL, MEPRAL MURI, PERINGARA VILLAGE, THIRUVALLA. BY ADV. SRI.GEORGE CHERIAN (THIRUVALLA) RESPONDENT(S): JOY THOMAS, THOTTUNGAL HOUSE, MEPRAL MURI, PERINGARA VILLAGE, THIRUVALLA. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = W.P.(c).No.3873 of 2010 = = = = = = = = = = = = = = Dated this the 8 th day of February, 2010 JUDGMENT Defendants 1 to 5 in O.S.No.583 of 2006 on the file of the Munsiff's Court, Thiruvalla are the writ petitioners. The said suit instituted by the respondent herein was one for cancellation of two documents and for partition and separate possession of his share over one item of immovable property. The petitioners, inter alia, opposing the suit on various goods including one of undervaluation and partial partition, contended that there was one more item of property to be included in the plaint in the event of partition. Pending suit the plaintiff filed I.A.No.912 of 2009 to delete the prayer for cancellation of the documents. The petitioners persisted the their claim for undervaluation and they filed I.A.No.1574 of 2008 to consider the issue regarding valuation as a preliminary decree. According to the petitioners even as per the documents produced by the W.P.(c)No.3873 of 2010 2 plaintiff himself the valuation for the suit property would exceed Rupees one lakh and would go beyond the pecuniary limit of the learned Munsiff. The court below, however, issued a Commission to assess the market value of the property as on the date of the suit and directed payment of a sum of Rs.1,200/- as Commission batta. 2. According to the petitioners they are not bound to defray the expenses for the Commission and that even for deciding the issue as to whether the suit is beyond the pecuniary limit of the Court, there was no need to issue a Commission by the court below and even if the Commission was to be issued the petitioners were not liable to pay the batta. 3. Having raised a plea of undervaluation and having sought that the issue to be considered as a preliminary issue the court below had to decide the question of market value of the property. The safest method to assess the market value of the property is by appointing a Commission. W.P.(c)No.3873 of 2010 3 The court below therefore ordered to appoint an Advocate Commissioner to ascertain the market value of the plaint schedule property as on the date of the suit. The Commission batta will have be borne by the plaintiff. The question as to whether the suit is bad for partial partition will have to be decided in the suit. And in case the court decides the valuation for the purpose of jurisdiction and in case the valuation exceeds the pecuniary limits of the Munsiff, it goes without saying that the suit will have to be returned for presentation before the proper court and in that event the proper court will have to go into the defence contentions including the defence of partial partition put forward by the petitioners. Clarifying this position this writ petition is disposed of as above. Dated this the 8th day of February, 2010. V. RAMKUMAR, JUDGE sj