IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 WP(C).No. 20917 of 2009(O) -------------------------- OS.494/2007 of PRINCIPAL SUB COURT,NORTH PARAVUR .................... PETITIONER(S): ------------------------- 1. TREESA @ ASHA PRIYA, W/O.SUSARAT, AGED 63, 2A, RAMAPURAM, CHENNAI-89. 2. ELISWA @ MOLLY, W/O.FRANCIS, AGED 48, KARUKAPPILLY HOUSE, TOWN HALL CROSS ROAD, KOCHI-18. BY ADVS.MR.K.G.SARATHKUMAR, MR.S.RAJKUMAR. RESPONDENT(S): ---------------------------- 1. UMMACHAN, S/O.CHACKU, AGED 54, VALIYAPARAMBIL HOUSE, PUTHANPALLY, VARAPPUZHA P.O. 2. JOSE KUNJU, S/O.CHACKU, AGED 51, VALIYAPARAMBIL HOUSE, PUTHANPALLY, VARAPPUZHA P.O. 3. MARZILY SEBASTSIAN, W/O.SEBASTIAN, AGED 60, PARAPPALLY HOUSE, PUTHENPALLY, VARAPPUZHA P.O. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.20917/2009 O APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.NO.494/2007ON THE FILE OF PRINCIPAL SUB JUDGE, NORTH PARAVOOR. P2: COPY OF THE WRITTEN STATEMENT AND COUNTER CLAIM FILED BY THE RESPONDENTS IN O.S.NO.494/2007 ON THE FILE OF PRINCIPAL SUB JUDGE, NORTH PARAVOOR. P3: COPY OF THE WRITTEN STATEMENT FILED BY THE PLAINTIFF TO THE COUNTER CLAIM IN O.S.NO.494/2007 ON THE FILE OF PRINCIPAL SUB JUDGE, NORTH PARAVOOR. P4: COPY OF THE ORDER DTD. 15/07/2009 IN O.S.NO.494/2007ON THE FILE OF PRINCIPAL SUB JUDGE, NORTH PARAVOOR. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.20917 of 2009 - O --------------------------------- Dated this the 9th day of September, 2009 JUDGMENT The writ petition is filed seeking the following relief: “To issue a writ of certiorari or such other writ, order or direction quashing Exhibit P4 order”. 2. Petitioners are the plaintiffs in O.S.No.494 of 2007 on the file of the Principal Sub Court, North Paravur. Suit is one for partition, and respondents are the defendants. After examination of the plaintiffs and witnesses were over, the learned Sub Judge passed an order holding that the court fee paid is inadequate and the plaintiff was directed to pay the deficit fee. The defendants who also sought partition was directed to pay court fee. Propriety and correctness of the order directing the plaintiffs to pay deficit court fee is challenged by them in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. Though notice was served on the respondents they have not entered appearance. I heard the learned counsel for the petitioners. W.P.(C).No.20917 of 2009 - O 2 4. Learned counsel for the petitioners submit that the allegations in the plaint specifically spell out that the petitioners/plaintiffs are in possession of the properties which is sought to be partitioned and so much so the court below was not justified in directing payment of court fee under Section 37(1) of the Court Fees and Suits Valuation Act holding that they have been excluded from the possession of the property. Irrespective of the question whether the plaintiffs are in possession of the property or excluded from possession, I find the court below was not at all correct in passing Ext.P4 order, after the trial has commenced and evidence was partially recorded in the case. Any question as to sufficiency of court fee or valuation of the suit if arises for consideration has to be determined preliminarily before commencement of the trial. Once trial has commenced it is not open to the court to determine the question of sufficiency of court fee or valuation unless there is enquiry as contemplated under Section 18 of the Court Fees Act and a report is filed by the court fee examiner deputed by the High Court. That being the case, the court below went wrong in proceeding with the enquiry whether court fee paid is W.P.(C).No.20917 of 2009 - O 3 sufficient after evidence was partly recorded. Ext.P4 order is set aside and the court below is directed to proceed further with the case and dispose of the same. So far as the direction given to defendants to pay court fee for claiming their share is not interfered with as it is proper and correct. Writ petition is disposed of accordingly. S.S.SATHEESACHANDRAN, JUDGE. bkn/-