IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 20TH DECEMBER 2010 / 29TH AGRAHAYANA 1932 WP(C).No. 5554 of 2010(O) ------------------------- OS.283/2006 of PRL.M.C.,KOZHIKODE-II .................... PETITIONER: --------------- KOTTAKUZHIYIL VELAYUDHAN, AGED 70 YEARS, S/O.THAMU, RESIDING AT KOTTAKUZHIYIL HOUSE, POST VELLAISSERI, KOZHIKODE. BY ADV. SRI.V.V.SURENDRAN SRI.P.A.HARISH RESPONDENTS: --------------- 1. KUNHILAKSHMI, W/O.KUNHAN NAIR, RESIDING AT CHOOLOOR AMSOM, SANKETHAM DESOM OF KOZHIKODE TALUK. 2. RAJAN, S/O.KUNHAN NAIR, RESIDING AT CHOOLOOR AMSOM, SANKETHAM DESOM OF KOZHIKODE TALUK. 3. LEELA, D/O.KUNHAN NAIR, RESIDING AT CHOOLOOR AMSOM, SANKETHAM DESOM OF KOZHIKODE TALUK. 4. SASEENDRAN, S/O.KUNHAN NAIR, RESIDING AT CHOOLOOR AMSOM, SANKETHAM DESOM OF KOZHIKODE TALUK. 5. JAYACHANDRAN, S/O.KUNHAN NAIR, RESIDING AT CHOOLOOR AMSOM, SANKETHAM DESOM OF KOZHIKODE TALUK. 6. VISALAKSHI, D/O.KUNHAN NAIR, RESIDING AT CHOOLOOR AMSOM, SANKETHAM DESOM OF KOZHIKODE TALUK. 7. BALAGOPAL, S/O.KUNHAN NAIR, RESIDING AT CHOOLOOR AMSOM, SANKETHAM DESOM OF KOZHIKODE TALUK. 8. KOTTAKUZHIYIL MADHAVAN, S/O.THAMU, RESIDING AT KOTTAKUZHIYIL HOUSE, POST VELLALSSERI, KOZHIKODE. ADV. SRI.K.M.FIROZ FOR R1-6 SMT.M.SHAJNA FOR R1-6 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 5554 of 2010 APPENDIX PETITIONERS EXHIBITS: EXHIBIT P1 : PLAINT IN O.S.NO.283 OF 2006 EXHIBIT P2 : WRITTEN STATEMENT EXHIBIT P3 : ORDER OF THE LEARNED MUNSIFF EXHIBIT P4 : ORDER OF the LEARNED MUNSIFF DTD 24-09-2009 True Copy P A to Judge THOMAS P JOSEPH, J. ---------------------------------------- W.P(C).No.5554 of 2010 --------------------------------------- Dated this 20th day of December, 2010 JUDGMENT Issue regarding sufficiency of court fee decided by the learned Principal Munsiff-II, Kozhikode vide order dated August 4, 2009 (Ext.P3) and refusal to review the said order vide order dated September 24, 2009 (Ext.P4) on I.A.No.3702 of 2009 in O.S.No.283 of 2006 are under challenge in this proceeding under Article 227 of the Constitution. Respondent Nos.1 to 6 and one Kunhan Nair filed the suit for fixation of boundary of plaint A schedule property as per document of title referred to therein, prohibitory injunction against commission of waste in plaint B schedule and recovery of possession of the said item. Petitioner and respondent No.8 filed written statement disputing among other things, correctness of court fee paid and valuation made for the said purpose. Learned Munsiff framed issue No.6 regarding sufficiency of court fee and decided the question as per Ext.P3, order holding that the only objection raised is regarding court fee paid for relief C (recovery of possession of plaint B schedule), found that valuation and court fee paid are proper and answered issue No.6 accordingly. Petitioner filed I.A.No.3702 of 2009 for W.P(C).No. 5554 of 2010 : 2 : review of the said order (Ext.P3) contending that objection was not with respect to the court fee paid for relief C alone and that objection related to court fee paid for reliefs A and B as well. That application was dismissed by the learned Munsiff relying on the decision of this court in Joseph Vs. Sara Thomas (1996(2) KLT 851) where it was held that though a decision taken under Sec.12(1) of the Kerala Court Fees and Suits Valuation Act (for short, “the Act”) may be subject to a review, an order under subsections 2 and 3 of the said section cannot be reviewed. Exts.P3 and P4, orders are under challenge at the instance of petitioner. It is contended by learned counsel for petitioner that finding of learned Munsiff as to sufficiency of court fee and valuation are not correct and nowhere it is stated in the plaint that suit property is agricultural land coming under Sec.7(2) of the Act so that valuation and court fee should be based on market value of the property. According to the learned counsel, it is Sec.7(3A) of the Act which applied. It is also contended that payment of court fee under Sec.30 of the Act so far as relief C (for recovery of possession of plaint B schedule) is not correct. Learned counsel for respondent Nos.1 to 7 contended that statement had been filed under Sec.10 of the Act in the court W.P(C).No. 5554 of 2010 : 3 : below as to the manner of assessment of gross profits derivable from plaint A and B schedule properties and that court fee has been paid accordingly. 2. True, it is not specifically stated in Ext.P1, plaint that property involved is agricultural land. But, it is not disputed that plaint A schedule is around 60 cents of land and even going by the contention raised by petitioner in paragraph 16 of Ext.P2, written statement there is reason to think that it is agricultural land since there is reference in paragraph 16 of Ext.P2 about the trees in the suit property. Even otherwise it is seen from reliefs A and C in Ext.P1, plaint that for the purpose of fixation of boundary and recovery of possession court fee has been paid, valuing the reliefs on the basis of annual gross profits, less revenue payable for the property multiplied by 10 which is the mode of assessment of market value for agricultural land under Sec.7(2) of the Act. In that circumstances, I am persuaded to proceed on the basis that according to respondent Nos.1 to 7 the suit properties are agricultural lands. 3. So far as valuation and payment of court fee are concerned, except in cases where it may affect the jurisdiction of the court it is mainly a question between the court and plaintiff. W.P(C).No. 5554 of 2010 : 4 : The Supreme Court in Lakshmi Ammal Vs. K.M Madhavakrishnan and Ors. (1978(4) SCC 15) has stated that the court should be anxious to grapple with the real issues and not spend their energies on peripheral ones. Court fee, if it seriously restricts the rights of a person to seek his remedies in courts of justice, should be strictly construed, because access to justice is the basis of legal system and so, where there is a reasonable doubt its benefit must go to him who says that a lesser court fee should be paid. Therefore court should be anxious to grapple with the real issues involved rather than dealing with peripheral issues like valuation and payment of court fee as I stated it affected jurisdiction of the court. I shall consider the contention in the light of above laid principles by this court. 4. So far as relief A is concerned, under Sec.45 of the Act court fee is payable on one-half of the market value of the property affected by determination of the boundary or on (`.1,000/-) whichever is higher. According to original plaintiff No.1 and respondent Nos.1 to 6 the annual income that plaint A schedule would fetch is `.5,000/- and the gross profits for the purpose of assessment of market value has been fixed at W.P(C).No. 5554 of 2010 : 5 : `.50,000/- less the amount of land revenue, annual gross profit is taken as `.24,987/- and court fee has been paid on one-half of the said amount under Sec.45 of the Act so far as relief A is concerned. 5. So far as relief C is concerned, it is recovery of possession of plaint B schedule on the strength of title. It would appear that original plaintiff No.1 and respondent Nos.1 to 6 have paid court fee under Sec.30 of the Act. In my view court fee was payable under Sec.25(d) of the Act. But that does not make any change since be it under Sec.25(d) or under Sec.30, court fee is payable on one-half of the market value if it is under Sec.25(d) or on (`.1000/-), whichever is higher or on the market value, if it is under Sec.30 of the Act. In the present case, for relief C annual gross profit from plaint B schedule has been fixed as `.1,000/- and court fee has been paid for the said amount which again is based on the assessment of market value as if it is agricultural land under Sec.7(2). 6. True, learned Munsiff committed a mistake in Ext.P3 considering valuation and court fee as regards relief C alone while going by paragraph 16 of Ext.P2, written statement that contention is not confined to relief C but it is applied to other W.P(C).No. 5554 of 2010 : 6 : reliefs also. I do not consider it necessary to send the matter back to the trial court for decision on relief A as well. Having gone through Exts.P1 to P4 and hearing counsel on both sides I do not find any legal infirmity in the order passed by learned Munsiff as regards valuation and court fee for relief C and in the light of what I have stated above, I do not find it necessary to send back the matter to the trial court for fresh consideration of valuation and court fee paid for relief A as well. Petition fails. It is dismissed. (THOMAS P JOSEPH, JUDGE) Sbna/-