IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 3RD SEPTEMBER 2010 / 12TH BHADRA 1932 WP(C).NO. 15167 OF 2010(O) -------------------------- OS.54/2008 OF PRL.M.C.,NEYYATTINKARA PETITIONER(S): --------------- ASOKAN, S/O.MADHAVA PANICKER, AGED 55 YEARS, SREEPURIS SADANAM, PUNNAVOOR, KUVALASSERI, MARANALLOOR VILLAGE. BY ADV. SRI.G.S.REGHUNATH RESPONDENT(S): --------------- 1. B.RAMACHANDRAN, AGED 60 YEARS, S/O.BHASKARAN, PLOT NO.15, R.NO.E-7, SIVAJI NAGAR, GOVANDI, MUMBAI-43. 2. M.BAHULAYAN, S/O.MADHAVA PANICKER, FLAT NO.1, THREE MOORTHICLASSIC, GURUPIMPLE, PUNE-411027, DAPPODI, MAHARASHTRA. ADV. SRI.NAGARAJ NARAYANAN FOR R1 SRI.NAIR AJAY KRISHNAN FOR R1 SRI.SAIJO HASSAN FOR R1 SRI.A.S.SABU FOR R1 SRI.VIMAL KUMAR.A.V. FOR R1 SRI.A.G.GIRISH KUMAR FOR R1 SRI.BENOJ C AUGUSTIN FOR R1 SRI.PRATHAP PILLAI FOR R1 SRI.RAFEEK. V.K. FOR R1 SRI.PAUL ANTONY MANIAMKOT FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF THE WRITTEN STATEMENT DATED 21.5.2008 IN O.S. NO.54 OF 2008. EXHIBIT P2 TRUE COPY OF THE ADDITIONAL WRITTEN STATEMENT DATED 31.10.2009. EXHIBIT P3 TRUE COPY OF I.A. NO.5781 OF 2009 DATED 31.10.2009. EXHIBIT P4 TRUE COPY OF THE OBJECTION FILED BEFORE THE MUNSIFF'S COURT, NEYYATTINKARA IN I.A. NO.5781 OF 2009 IN O.S. NO.54 OF 2008. EXHIBIT P5 TRUE COPY OF THE ORDER DATED 25.2.2010 ON I.A. NO.5781 OF 2009 IN O.S. NO.54 OF 2008 OF THE PRINCIPAL MUNSIFF'S COURT, NEYYATTINKARA. EXHIBIT P6 TRUE COPY OF THE PROOF AFFIDAVIT FILED BY THE PETITIONER DATED 16.11.2009. RESPONDENT'S EXHIBITS: ----------------------------------- NIL TRUE COPY THOMAS P.JOSEPH, J. ==================================== W.P(C) No.15167 of 2010 ==================================== Dated this the 03rd day of September, 2010 J U D G M E N T Exhibit P5, order dated 25.02.2009 allowing I.A.No.5781 of 2009 and permitting respondent No.1-defendant No.2 to file additional written statement taking up a plea of insufficient court fee and low market value to decide jurisdiction of learned Munsiff is under challenge in this Writ Petition. Petitioner-plaintiff claimed that to facilitate his brother, respondent No.2-defendant No.1 avail a loan he purchased the suit property spending his funds in the name of respondent No.2 and while so, respondent No.2 executed assignment deed in favour of respondent No.1 on 10.09.1998 in respect of a portion of the suit property. Petitioner sued for declaration of his title over the suit property and that sale deed executed by respondent No.2 on 10.09.1998 is invalid. For the purpose of jurisdiction and court fee market value of the property was assessed as Rs.50,000/- and accordingly court fee was paid on one half of the said amount as per Section 25(b) of the Kerala Court Fees and Suits Valuation Act (for short, “the Act”). W.P(C) No.15167 of 2010 -: 2 :- Respondents in the written statement did not make any mention about valuation, court fee or regarding jurisdiction except contending that the suit is not maintainable. However, respondent No.1 filed Ext.P3, application on 31.10.2009 seeking leave of court to file additional written statement under Order VIII Rule 9 of the Code of Civil Procedure and filed additional written statement contending that market value of the property assessed by petitioner is low. That application was resisted by petitioner. Learned Munsiff by Ext.P5, order observing that filing of additional written statement will not cause any prejudice to the petitioner allowed that application. It is contended by learned counsel for petitioner that learned Munsiff was not correct in allowing Ext.P3, application. It is contended that much prejudice will be caused to the petitioner on account of additional written statement being received at the fag end of the proceeding much after the case was included in the list for trial (though later, removed from the list). It is contended that if at this stage case of respondent No.1 regarding valuation is accepted it will have the effect of ousting jurisdiction of learned Munsiff and whatever steps that have been taken by the petitioner in the suit will fall to the ground. Further contention is that under Sec.12(2) of the Act issue regarding court fee and valuation ought to have been W.P(C) No.15167 of 2010 -: 3 :- raised, at any rate before evidence was recorded and in this case it is after the case was included in the list for trial (though later removed from the list) that Ext.P3, application was filed on 31.10.2009. Learned counsel for respondent No.1 contends that petitioner filed proof affidavit in the case only on 16.11.2009 but Ext.P3, application was filed on 31.10.2009 and hence the contention that it is after recording of evidence started that Ext.P3, application was preferred cannot be accepted. According to the learned counsel valuation given in the plaint is grossly inadequate and that question has to be considered. 2. It is not disputed that in the written statement filed by respondent No.1, no challenge to the valuation for the purpose of jurisdiction and court fee was raised but only a spacious contention that the suit is not maintainable was raised. However, in the additional written statement filed on 31.10.2009 issue regarding sufficiency of court fee and valuation is raised. It is seen from Ext.P5, order that learned Munsiff proceeded on the assumption that acceptance of additional written statement will not cause prejudice to the petitioner which prima facie does not appear to be correct for the reasons which I have stated above. Learned Munsiff ought to have taken note of whether acceptance W.P(C) No.15167 of 2010 -: 4 :- of additional written statement at this stage would cause any prejudice to the petitioner and in the circumstances additional written statement could have been received. It is not as if a party is free to file additional written statement as he wished. Going by Order VIII Rule 9 of the Code it is for the court to decide whether subsequent pleadings should be entertained. Learned Munsiff has not decided on the facts and circumstances of the case whether respondent No.1 should be allowed to file additional written statement. Hence Ext.P5, order cannot stand. I am persuaded to give an opportunity to the parties to agitate the question before the learned Munsiff. Resultantly, Writ Petition is allowed by way of remand. Exhibit P5, order is set aside and Ext.P3, application is remitted to the court of learned Munsiff, Neyyattinkara for fresh decision in accordance with law, facts and considering the contentions raised by either side and untrammelled by any observation contained herein on the merit of the claim. THOMAS P. JOSEPH, JUDGE. vsv