IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 11TH DECEMBER 2009 / 20TH AGRAHAYANA 1931 WP(C).No. 18213 of 2009(O) -------------------------- OS.398/2004 of ADDL.SUB COURT,PARAVUR .................... PETITIONERS: --------------- 1. GOPINATH, S/O. APPUKUTTAN PILLAI, SREEVILASAM, MOOTHAKUNNAM KARA, MOOTHAKUNNAM VILLAGE, PARAVUR TALUK. 2. MOHANDAS, S/O. APPUKUTTAN PILLAI, SREEVILASAM, MOOTHAKUNNAM KARA, MOOTHAKUNNAM VILLAGE, PARAVUR TALUK. 3. PADMAJA, D/O. APPUKUTTAN PILLAI, SREEVILASAM, MOOTHAKUNNAM KARA, MOOTHAKUNNAM VILLAGE, PARAVUR TALUK. BY ADV. MR.P.V.BABY RESPONDENTS: --------------- 1. RAPHEL, S/O. CHACKO, CHEMMASSERIL, MADAPLAMTHURUTHY MURI, PARAVUR TALUK. 2. JOSEPH, S/O. POULO, PUTHEZHATH, GOTHURUTH MURI, PARAVUR TALUK. ADV. MR.T.H.ABDUL AZEEZ FOR R1 & 2 MR.MOHAMMED SADIQUE.T.A FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.18213 of 2009 - O --------------------------------- Dated this the 11th day of December, 2009 J U D G M E N T Petitioners are the plaintiffs in O.S.No.398 of 2004 on the file of the Sub Court, North Paravoor. Suit is one for setting aside two registered documents and in the alternative for refund of money, and the respondents are the defendants. After entire evidence was recorded in the case, learned Sub Judge passed an order that the suit has not been properly valued and court paid is insufficient. Plaintiff was directed to value the suit in accordance with the relevant section under the Courts Fees and Suits Valuation Act, and to pay the court fee accordingly. That order was challenged by filing a revision before this Court. After hearing both sides this Court dismissed the revision as not maintainable, but, observing that after the entire evidence had been recorded the court is not empowered to consider the question of valuation and also sufficiency of court fee on an objection on that count raised by the defendant. Ext.P2 is the order passed in that revision. Pursuant thereto the learned Sub W.P.(C).No.18213 of 2009 - O 2 Judge after reconsidering the issue, hearing both sides, passed Ext.P4 order directing the plaintiff to value the property with reference to its market value and pay the court fee accordingly. Ext.P4 is that order. Propriety and correctness of Ext.P4 order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 2. I heard the learned counsel on both sides. 3. Observations made in Ext.P2 order enabling the the petitioners/plaintiffs to file a review petition were canvassed before me by the learned counsel to contend that in passing Ext.P4 order learned Sub Judge had bypassed the mandate covered under Section 12(2) of the Court Fees and Suits Valuation Act. A copy of the plaint was handed over to me by the counsel on my request. Perusing the copy of the plaint, I find that the main relief canvassed in the suit was for setting aside two documents and as an alternative relief, recovery of money had also been canvassed of. When a declaration is sought for setting aside the documents creating rights over immovable W.P.(C).No.18213 of 2009 - O 3 property the plaintiffs are bound to value the suit with reference to the market value of such property as on the date of the presentation of the suit and pay court fee thereof as contemplated under Section 40 of the Court Fees and Suits Valuation Act. A Division Bench of this Court in Pachayammal v. Dwaraswamy Pillai (2006(3) KLT 527) analysing that question has held that “When a suit is filed for cancelling a gift deed or sale deed or other document which operates to create, assign, limit or extinguish any right of title in respect of immovable property, suit valuation under Section 40 is based on market value of property, on the date of filing of suit.” So much so the plaintiffs in the present case, in view of the relief claimed in their suit, was bound to value the property with reference to the market value of the property covered by the deeds declared to be set aside as on the date of presentation of the suit and pay court fee accordingly. It is seen from the copy of the plaint that they have valued the suit as under Section 25(b) of the Courts Fees Act and paid the court fee on the tentative assessment of the value of the property made thereunder. When that be so, no W.P.(C).No.18213 of 2009 - O 4 infirmity can be attributed to Ext.P4 order passed by the learned Sub Judge directing the plaintiffs to effect valuation of the property with reference to the market value of the property. True, the learned Sub Judge has not taken into account the direction in Ext.P2 order with reference to the binding force of Section12(2) of the Court Fees Act, but, in the given facts of the case where the plaint allegations clearly demonstrate that the valuation made by the plaintiff and the court fee paid was incorrect and the State is likely to be the looser if the valuation made earlier is accepted I find no interference with Ext.P4 order is called for. Plaintiffs are given one month's time to file a valuation statement in accordance with the market value of the property as on the date of the suit and to pay the deficit court fee payable on the suit claim. Subject to the above direction, writ petition is closed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-