IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 8TH JUNE 2009 / 18TH JYAISHTA 1931 FAO.No. 195 of 2005() --------------------- I.A. 749/2005 IN OS.73/2000 of SUB COURT, QUILANDY .................... APPELLANTS/RESPONDENTS 1 TO 3/PLAINTIFFS 1 TO 3: ------------------------------------------------------------------------------- 1. SARASU ALIAS SARASWATHY MANAYAMMA, D/O. PARVATHY MANAYAMMA, UPPILIKKAYI DESOM, PUTHUKKAYI VILLAGE, KASARAGOD DISTRICT. 2. VASUDEVAN NAMBI, S/O. NARAYANAN NAMBI CHERUVOTT HOUSE, CHRUVANNUR AMSOM, PARAMBIRI KUNNU DESOM, KOZHIKODE DISTRICT. 3. SADASIVAN NAMBI, S/O.NARAYAN NAMBI CHERUVOTT HOUSE, CHERUVANNUR AMSOM, PARAMBIRI KUNNU DESOM, KOZHIKODE DISTRICT. BY ADV. SRI.B.KRISHNAN RESPONDENT(S): --------------- 1. T. KESAVAN NAMBI, S/O. VASU ALIAS KESAVAN NAMBI, THODUVAYAL HOUSE, ULLIYERI AMSOM, DESOM, KOYILANDY. 2. T. VASU NAMBI, S/O. VASU ALIAS KESAVAN NAMBI, KOTTAPARAMBATH HOUSE, ULLIYERI AMSOM, DESOM, KOYILANDY. 3. T. KESAVAN NAMBI, S/O. VASU ALIAS KESAVAN NAMBI, `AISWARYA' ULLIYERI AMSOM, DESOM, KOYILANDY. 4. T. RAVEENDRAN NAMBI, S/O. VASU ALIAS KESAVAN NAMBI, `KRISHNA', PUTHUOOR, P.O. NANMINDA. 5. T. CHANDRAN NAMBI, S/O. VASU ALIAS KESAVAN NAMBI, `PURNAMI' HOUSE, ULLIYERI AMSOM, DESOM, KOYILANDY. 6. RAJAN NAMBI, S/O. VASU ALIAS KESAVAN NAMBI, CLERK, A.R. MEMORIAL HIGH SCHOOL, CHANDA PORAYI, MALAPPURAM. 7. PAVITHRAN NAMBI, S/O. VASU ALIAS KESAVAN NAMBI, TEACHER, EDARIKKODE HIGH SCHOOL, KOTTAKKAL AYURVEDA COLLEGE, EDARIKKODE. 8. BHANUMATHY ANTHARJANAM, W/O. UNNINARAYANAN NAMBI, THENDAMBALATH ILLAM, PARANNUR, KOZHIKODE. 9. PRASANNA MANAYAMMA, W/O. K. KRISHNAN NAMBI, CHANDINI HOUSE, PARORA, MATTANNUR, KANNUR DISTRICT. 10. BHARATHI ANTHARJANAM, W/O. KESAVAN NAMBI, EDAKKOTE HOUSE, ULLIYERI AMSOM, DESOM, KOYILANDY. 11. SATHEESAN, S/O. KESAVAN NAMBI, EDAKKOTE HOUSE, ULLIYERI AMSOM, DESOM, KOYILANDY. 12. T. DHILIPAN, S/O. KESAVAN NAMBI EDAKKOTE HOUSE, ULLIYERI AMSOM DESOM, KOYILANDY. 13. SAVITHIRI ANTHARJANAM, W/O.VASU NAMBI KOTTAPARAMBATH HOUSE, ULLIYER AMSOM DESOM, KOYILANDY. 14. HARIDASAN, S/O. KESAVAN NAMBI, AGED 36 YEARS, KOTTAPARAMBATH HOUSE, ULLIYERI AMSOM, DESOM, KOYILANDY. 15. SAVITHRI ALIAS LILLY, W/O. RAVEENDRAN NAMBI, THENDAPALATH ILLAM, PARANNUR AMSOM DESOM, NARIKKUNI. 16. T. KESAVAN, S/O. VASU NAMBI, KOTTAPARAMBATH HOUSE ULLIYERI AMSOM, DESOM, KOYILANDY. 17. T. VASU ALIAS LINEESH, S/O. VASU NAMBI, KOTTAPARAMBATH HOUSE, ULLIYERI AMSOM DESOM, KOYILANDY. 18. PRASANNA KUMARI ANTHARJANAM, W/O. T. KESAVAN NAMBI, `AISWARYA', KOTTAPARAMBATH HOUSE, ULLYERI AMSOM, DESOM, KOYILANDY. 19. T. SINDHU, W/O. B. NARAYANAN, PANTHAPILAVE HOUSE, MATHUR, KASARAGOD. ADV. SRI.T.KRISHNAN UNNI, SENIOR ADVOCATE FOR R1,2,4,6 & 7 SRI.SANTHARAM.P FOR R8 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 08/06/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R. RAMAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - F.A.O. No. 195 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of June, 2009. JUDGMENT Raman, J, Appeal arises against an order passed by the Subordinate Judge's Court, Koyilandy in I.A. No.749 of 2005 in O.S. 73 of 2000. 2. Plaintiffs are the appellants. The respondents- defendants filed the above application under Order 47 Rule 1 read with Section 114 of the Code of Civil Procedure seeking a review of the earlier order passed in I.A. No.461 of 2005, an application for amendment of the written statement seeking to raise an additional contention that the court fee paid is not correct was dismissed and it is that order, which is sought to be reviewed. It was the contention of the respondents as petitioners therein that while filing the written statement, they did not raise the contention that the suit properties were not valued properly for filing the suit and the court fee paid is not correct and the provision under which the same is paid is also wrong. The earlier application, I.A. 461 of FAO. 195/2005. 2 2005 was thus for an order permitting them to amend the written statement to incorporate that contention. The said application was dismissed on the ground that it was after recording the evidence that the application was filed seeking amendment, which is hit by Section 12(2) of the Court Fees Act. By the impugned order, however, the court reviewed its earlier order and not only permitted the amendment to be carried out, but even the contention as raised in the amendment is allowed and the plaintiffs were asked to pay court fee after amending the plaint and revaluing the suit. 3. The suit is one for partition and the plaintiffs claimed to be in joint possession with others. The contesting defendants had a case that they have exclusive right over plaint items based on a will and a gift deed. The validity or otherwise of the will or gift deed therefore arises for consideration in the suit. The necessary issues were framed and the parties have also gave evidence. It was thereafter that amendment was sought. Before we consider the rival contentions, we may refer to Section 37(1) and (2), which deals with the court fee payable on partition suits. FAO. 195/2005. 3 “37. Partition suits.- (1) In a suit for partition and separate possession of a share of joint family property or f property owned, jointly or in common, by a plaintiff who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiff's share. (2) In a suit for partition and separate possession of joint family property or property owned, jointly or in common, by a plaintiff who is in joint possession of such property, fee shall be paid at the following rates:- When the plaint is presented to- (i) a Munsiff's Court Rupees fifty (ii) a Sub-Court or a District Court Rupees three hundred (3) ............. (4) .............” 4. The defendants want to set up a contention that since the plaintiffs are not in joint possession of the property, the court fee shall be computed on the market value, whereas according to the plaintiffs, the suit is framed as if they are in joint possession with others and valued the suit under Sub Section (2) and paid fixed court fee. Section FAO. 195/2005. 4 12(2) of the Court Fees Act provides that any defendant may by his written statement file before the first hearing of the suit or before evidence is recorded on the merits of the claim but, subject to the next succeeding sub-section, not later, plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. If the Court decides that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient, the Court shall fix a date before which the plaint shall be amended in accordance with the Court's decision and the deficit fee shall be paid. If the plaint be not amended or if the deficit fee be not paid within the time allowed, the plaint shall be rejected and the Court shall pass such order as it deems just regarding costs of the suit. Since the plaintiff is the master of his suit and he has valued the suit based on the averments made therein, only if it is found that he is not in joint possession with others, then the further question would be whether court fee ought to be paid on the market value. The court is yet to decide the issue as to whether FAO. 195/2005. 5 the plaintiffs are in joint possession or they are out of possession. Only after a finding is entered thereon, the question regarding as to how the plaint should be valued could be decided. So long as the suit is valued as per the plaint averment, on the basis of the plea raised, it cannot be said that there is any bar under Section 12(2). The bar under Section 12(2) will apply only when the suit as such is contended to be not properly valued. Whereas in the present case, it will depend upon a finding as to whether the plaintiffs are in joint possession or not, which itself is an issue to be decided in the suit. In such circumstances, we do not find any merit in the contention that the amendment sought is hit by Section 12(2) of the Act. However, we find that if an amendment is allowed, necessarily an opportunity to the plaintiffs to meet the contention has to be given by permitting them to file a replication or to amend the plaint as the case may be. Thereupon the court will frame an issue, if not already raised, as to whether the plaintiffs are in joint possession and will decide the issue accordingly and the consequences that may follow based on the said decision in accordance with law. Therefore that part FAO. 195/2005. 6 of the order whereby the court has directed the plaintiffs to amend the valuation is too premature and accordingly set aside. It is open to the plaintiffs to file any replication in answer to the amendment already allowed by the court below, if not already filed, within a period of two weeks and thereafter decide the issue subject to what is stated above. Appeal is thus partly allowed. P.R. Raman, Judge P. Bhavadasan, Judge sb.