IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID TUESDAY, THE 19TH OCTOBER 2010 / 27TH ASWINA 1932 WP(C).No. 28127 of 2008(W) ---------------------------------------- OS.597/2002 of II ADDL.SUB COURT,ERNAKULAM .................... PETITIONER(S): ----------------------- E.R.MARTIN, AGED 57, S/O.CHACKO ROCKEY, PALLATH HOUSE, PALARIVATTOM DESOM, POONITHURA VILLAGE, KANAYANNOOR TALUK. BY ADV. SRI.V.RAJENDRAN (PERUMBAVOOR) RESPONDENT(S): ------------------------ 1. JOSEPH, S/O.OUSEPH, AGED ABOUT 72 PALLATH HOUSE, PALLATH LANE, MAMANGALAM, NEAR AVE MARIYA CHURCH, EDAPPILLY, S.VILLAGE. 2. XAVIER, S/O.OUSEPH, AGED ABOUT 66, PALLATH HOUSE, PALARIVATTOM DESOM, POONITHURA VILLAGE. 3. ANTONY, S/O.OUSEPH, AGED ABOUT 63, PALLATH HOUSE, PALARIVATTOM DESOM, POONITHURA VILLAGE. 4. SHEETHA BABU, AGED 28, KANNAMKERY HOUSE, MADAVANA P.O., PANANGAD, KOCHI. 5. LAIMA BAIJU, W/O.BAIJU, AGED 26, NADUVELI HOUSE, KUMBALANGI P.O., KOCHI. W.P.(C) NO.28127/2008 *ADDL. R6 TO R8 IMPLEADED. 6. ELIAMMA MATHEW, W/O. LATE P.J.ANTONY, PALLATH HOUSE PALARIVATTOM DESOM, POONITHURA VILLAGE. 7. ASHA JIBU, W/O. JIBU PAUL, MALIKAIL HOUSE, KADATHI, MUVATTUPUZHA. 8. ALPHA MANOJ, W/O. MANOJ M.JOSE, MANKUTHEL HOUSE, KARIMATTOM. ADDL. R6 TO R8 ARE IMPLEADED AS PER ORDER DTD. 24/07/2010 R1 BY ADVS.SRI.K.R.MICHAEL, SRI.FRANCIS JOSEPH KURISINKAL. R2 BY ADV. SRI.P.K.RAVISANKAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/10/2010, ALONG WITH WPC NO. 30013 OF 2008 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.28127/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE INJUNCTION SCHEDULE IN IA.4026/02 IN OS. 597/02 OF SUB COURT, ERNAKULAM SUBMITTED BY THE PETITIONER. P2:- COPY OF THE WRITTEN STATEMENT SUBMITTED RESPONDENTS 2 & 3 IN OS. 597/02 OF SUB COURT, ERNAKULAM DTD. 4.1.03. P3:- COPY OF THE THANDAPPER LIST OF EXT.P1 PROPERTY ISSUED FROM EDAPPALLY SOUTH VILLAGE BEARING NO.6180/04 DTD. 24.11.04. P4:- COPY OF THE PETITION IN OS. 597/02 FILED BY THE RESPONDENT ON 24.5.04. P5:- COPY OF THE VALUATION STATEMENT FILED BY THE PETITIONER IN OS. 597/02 OF SUB COURT, ERNAKULAM DTD. 29.3.05. P6:- COPY OF THE OBJECTION FILED BY THE 3RD RESPONDENT TO EXT.P5 DTD. 19.5.03. P7:- COPY OF THE ORDER PASSED BY SUB COURT, ERNAKULAM IN OS. 597/2002. P8:- COPY OF THE COMMISSION REPORT FILED BY COMMISSIONER IN IA. 4027/02 IN OS. 597/02 DTD. 17.10.02. P9:- COPY OF THE ORDER IN WPC. 22291/06 DTD. 5.6.07. P10:- COPY OF THE COMMISSION REPORT FILED BY COMMISSIONER DTD. 11.7.08. P11:- COPY OF THE ORDER PASSED BY THE LOWER COURT ON 18.8.08. P12:- COPY OF THE IA. 5556/08 IN OS. 597/02 FILED BY THE PETITIONER ON 14.8.08. P13:- COPY OF THE WITNESS SCHEDULE FILED ALONG WITH EXT.P2. TRUE COPY P.S. TO JUDGE tss HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NOS.28127 & 30013 OF 2008 ------------------------------- DATED THIS THE 19TH DAY OF OCTOBER, 2010 JUDGMENT The lst plaintiff in O.S.No.597/02 on the file of the Sub Court, Ernakulam is the petitioner. The prayer in the writ petition is to set aside Ext.P11 order passed by the Sub Court, Ernakulam on the question of valuation of court fee and jurisdiction heard as a preliminary point. The suit is for recovery of possession of the plaint schedule property. The plaintiffs have valued the relief under Section 30 of the Kerala Court Fees and Suits Valuation Act. The extent of the plaint schedule property is 1acre 15 cents. The market value is shown as 1,15,000/-. The defendants disputed the valuation for the purpose of court fee and jurisdiction. At the instance of the defendants the court deputed an Advocate Commissioner to ascertain the nature of the property. Ext.P10 is the report submitted by the Commissioner. The Commissioner inspected the property on 3/6/2008. The suit was -2- WP(C).Nos.28127 & 30013/08 filed in October 2002. There is gap of 6 years between the filing of the suit and the site inspection by the Commissioner. The Commissioner reported that there are several improvements in the property, namely, mango tree, teak tree, vaka tree, kudampuli tree, coconut trees, arecanut trees jack fruit tree etc. The Commissioner also reported that he had seen two newly constructed buildings at the time of inspection and that these two buildings are on the southern and northern portion of the property, that the ground floor of the building on the northern portion is working as an Eye Hospital by name 'K.G.M. Eye Hospital' and that in the first floor of the building there is a beauty parlour by name 'Ladlee Fashion Boutique'. It is also reported that the building on the northern portion is working as a laboratory by name 'DDRC-Well Spring'. 2. The very same Commissioner inspected the property immediately after the filing of the suit. The site inspection was on 8/10/2002. The Commissioner reported in Ext.P10 that at the time of his first inspection, only a skeleton structure of these two -3- WP(C).Nos.28127 & 30013/08 buildings were seen. 3. The court below appreciated the report submitted by the Commissioner not in the right perspective. The Commissioner only reported the commercial activities mentioned in the property as on the date of his inspection i.e. on 3/6/2008. We are concerned with the question of valuation of the plaint at the time of filing the suit. The Commissioner reported that the commercial buildings now seen are not in the property at the time of his first inspection. Only a skeleton structure of the commercial buildings are there at the time of his first inspection. That would go to show that the commercial buildings are not in existence nor any commercial activities are there in the plaint schedule property at the time of filing the suit. Section 30 of the Kerala Court Fees and Suits Valuation Act mandates that in the case of a suit for possession of immovable property, fee shall be computed on the market value of the property or Rs.1,000/- whichever is higher. Excluding the commercial activity reported by the Commissioner, the property is -4- WP(C).Nos.28127 & 30013/08 having only improvements like mango tree, jack fruit tree, arecanut tree etc. Therefor there is every justification for the plaintiff to value the property under Section 30 read with Section 7(1) of the Act. The learned II Additional Sub Judge passed Ext.P11 order directing the plaintiff to value the relief for the purpose of court fee and jurisdiction under Section 7(3A) of the Kerala Court Fees and Suits Valuation Act at Rs.50,000/- per cent. The court below re- fixed the value of the property on the basis of the Commissioner's report. In paragraph 7 of the order it is stated that “in view of the Commissioner's report, it cannot be said that the property is an agricultural land only”. Taking note of the commercial activity going on in 2008 the court below held that the property is not only agricultural but also commercial. Therefore it is held that the relief could be valued on the basis of Section 7(3A) of the Act. I have already stated that the finding based on the Commissioner's report submitted in 2008 regarding the commercial activities going on in the property is not a criterion for deciding the valuation of the -5- WP(C).Nos.28127 & 30013/08 property as on the date of filing of the suit. Therefore, Ext.P11order directing the plaintiff to change the valuation at the rate of Rs.50,000/- per cent and to amend the valuation and pay court fee accordingly cannot stand. The said order caused manifest injustice to the plaintiff in the suit. In the result, Ext.P11 order is set aside. 4. W.P.(C). No.30013/2008 was filed by the 2nd defendant in O.S.No.527/02 seeking to set aside Ext.P4 order, so far as it fixed the value of the plaint schedule property as Rs.50,000/- per cent instead of Rs.2,00,000/- per cent and also for a direction to the plaintiff to value the relief at the rate of Rs.2,00,000/- per cent for the purpose of court fee and jurisdiction. Ext.P4 is the very same order produced as Ext.P11 in W.P.(C). No.28127/09. 5. I have already discussed the propriety in passing Ext.P11 order. In the light of the reasons stated in the preceding paragraphs, the petitioner is not entitled to any relief in this writ -6- WP(C).Nos.28127 & 30013/08 petition. In the result W.P.(C).No.28127/08 is allowed and W.P. (C).No.30013/08 is dismissed. HARUN-UL-RASHID, Judge. kcv.