IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 20TH JULY 2009 / 29TH ASHADHA 1931 WP(C).No. 13855 of 2009(O) --------------------------------------- OS.51/2006 OF SUB COURT, MANJERI. .................... PETITIONERS/ PLAINTIFFS 1 & 2: ------------------------------------------------ 1. POOLAKKAL KARIMBANAKKAL MUHAMMED, S/O.ABDUL KHADER, 38 YEARS. 2. IST PLAINTIFF'S BROTHER POOLAKKALKARIMBANAKKAL MUHAMMED AYOOB, S/O.MUHAMMED,33 YEARS. (PLAINTIFFS ARE RESIDING AT ERNAD TALUK KARUMARAKKAD AMSOM, DESOM, P.O.AKODE, VIA VAZHAKKAD). BY ADV. MR.V.N.RAMESAN NAMBISAN. RESPONDENTS/ DEFENDANT NO.1 DIED DURING PENDENCY OF THE SUIT, DEFENDANTS 2 TO 4 AND SUPPLEMENTAL DEFENDANTS 5 TO 7: ------------------------------------------------------------------------------------------------------------- 1. POOLAKKAL KARIMBANAKKAL KHADER HAJI'S SON MUHAMMED (DIED) ,65 YEARS, IST DEFENDANTS WIFE UMMU BARKATH, 50 YEARS, D/O.FORMER EDUCATIONAL MINISTER LATE CHAKKEERI AHAMMEDKUTTY. 2. IST PLAINTIFF'S WIFE, SAKHIRA, 32 YEARS D/O.KARIMABANAKKAL MUHAMMED HAJI. 3. 2ND PLAINTIFF'S WIFE SADIYA, 25 YEARS, D/O.PARAVAKKAL ABOOBACKER. DECEASED POOLAKKAL KARIMBANAKKAL MUHAMMED'S CHILDREN. W.P.(C). NO.13855/2009-O: 4. SAREENA, 35 YEARS 5. SAJITHA FATHIMA, 32 YEARS 6. AHAMMED KABEER, 28 YEARS (RESPONDENT 1 AND RESPONDENTS 2 TO 6 ARE RESIDING AT ERNAD TALUK, KARUMARAKKAD AMSOM, DESOM). R1, R5 & R6 BY ADV. MR.M.SASINDRAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.13855/2009-O: APPENDIX PETITIONERS' EXHIBIT: EXT.P.1: COPY OF THE ORDER DTD. 06/04/2009 OF THE COURT OF THE SUBORDINATE JUDGE, MANJERI IN O.S.NO. 51/06. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. S.S.SATHEESACHANDRAN, J. = = = = = = = = = = = = = = == = = = = = = W.P.(C). No. 13855 OF 2009 = = = = = = = = = = = = = == = = = = = = = Dated this the 20th day of July 2009. JUDGMENT The writ petition is filed seeking the following reliefs:- i) issue a Writ of Certiorari or any other appropriate order or direction and set aside the order dated 06.04.2009 of the Court of the Subordinate Judge, Manjeri in O.S.No.51/06; ii) to declare that without recourse to the power of the trial Court either under Section 18 or 19 of the Kerala Court Fees & Suit Valuation Act, straightaway based on the contentions in the written statement filed by the respondents/defendants, order passed directing to pay deficit Court fee that too without ascertaining the market value and without quantifying the Court fee is not correct in law; and iii) to grant such other and further reliefs to the petitioners as the Court may consider just and proper in the facts and circumstances of the case. 2. Petitioners are the plaintiffs in O.S.No.51/2006 on the file of the Sub Court Manjeri. The respondents are the defendants in that Suit. Suit is for cancellation of a settlement deed and consequencial reliefs. The defendants in their written statement among other contentions disputed the valuation shown in the plaint and the court fee paid and accordingly an W.P.(C). No. 13855 OF 2009 2 issue was raised on that point. The issue so raised (issue No.4) was heard preliminary and the court below passed Ext.P1 order holding that the valuation shown in the plaint and court fee paid are not correct. Petitioners / plaintiffs were directed to value the suit in accordance with the market value of the property covered by the deed sought to be cancelled and remit. the court fee there of, failing which the plaint was ordered to be rejected. Impeaching the propriety and correctness of that order petitioners have filed the above petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the Counsel on both sides. The learned Counsel for the petitioners submits that Ext.P1 order passed by the court is unsustainable under law since the petitioners have not been given an opportunity to take out a commission to ascertain the market value of the property on the basis of which valuation is to be shown and court fee to be paid for the suit claim, as contemplated under the Court Fee and Suit Valuation Act, and so much so setting aside that order the court below be directed to appoint a commission for determining a market value of the W.P.(C). No. 13855 OF 2009 3 property. The learned Counsel for the respondents has no objection to the request made as above. A division bench of this Court in Pachayammal and others v. Dwaraswamy Pillai and others (ILR 2006(3) KER 336) has held in a suit of this nature for cancellation of a deed and other documents which purports or operates to create, assign, limit or extinguish right or title in respect of immovable property, suit valuation under Section 40 of the Court Fees Act should be based on the market value of the property, for which document was executed on the date of filing of suit. Admittedly, the petitioners has valued the suit on the consideration shown in the deed which is sought to be cancelled and not with respect to the market value of the property covered by the deed on the date of the filing of the Suit. So much so Ext.P1 order passed by this Court that valuation shown and court fee paid on the plaint are not correct, cannot be found fault with. However, there is some force in the grievance canvassed by the learned counsel for the petitioners that to resolve the disputed question relating to valuation for the purpose of determining the market value of the property, the aid of the court by appointing an Advocate Commissioner is necessary. The court below shall W.P.(C). No. 13855 OF 2009 4 appoint an advocate commission to determine the market value of the property and on the basis of such report and the light of the objections thereto if any, by both sides, it shall pass appropriate orders on question of valuation and court fee. Plaintiff shall pay the batta for taking out a Commission, and once an order is passed by the Court, it shall file a proper valuation statement and amend the plaint accordingly and pay the court fee as fixed by the Court. Ext.P1 order to the extent that the plaint will be rejected if deficit court fee is not paid on or before the date fixed by the court below shall stand modified subject to the observations made above. Writ petition is closed as indicated above. Hand over a copy of the judgment to the Counsel on both sides on usual terms. S.S.SATHEESACHANDRAN JUDGE kkms/