IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 9TH JULY 2009 / 18TH ASHADHA 1931 WP(C).No. 13759 of 2009(O) -------------------------- OS.336/2005 of MUNSIFF'S COURT, THALASSERY .................... PETITIONER(S): ------------------------ RAMACHANDRAKURUP,S/O.LATE C.O.KUNHAPPA NAMBIAR, RETD.TALUK PANCHAYATH OFFICER, 'SRUTHI' PUTHUR AMSOM, DESOM, KANNUR DISTRICT. BY ADV. MR.GRASHIOUS KURIAKOSE RESPONDENT(S): --------------------------- 1. PUTHUR PALLIKKAL MADAPPURA A SOCIETY, REGISTERED UNDER SOCIETIES REGISTRATION ACT, ELANKODE P.O. PANOOR, KANNUR DISTRICT. 2. V.V.KUNHIRAMAN,S/O. CHEKOTI VALIYA VADAKKAYIL, P.O. PUTHUR, PUTHUR AMSOM, DESOM, KANNUR DISTRICT. 3. N.VASU, NELLIYIL HOUSE, P.O. ELANKODE, PANOOR, KANNUR DISTRICT. 4. N.P. BALAN, S/O. CHATHAN, -DO- -DO-. 5. K.P.PAVITHRAN, KUNHIPARAMBATH, P.O. ELANKODE, -DO- -DO-. 6. P.K.RAMOOTTY, PONNATHUMKANDY, -DO- -DO-.( D I E D) * THE 6TH RESPONDENT IS RECORDED AS DEAD AS PER ORDER DTD. 18/06/2009 IN WPC.NO.13759/09. Kss ..2/- ..2.... WPC.NO.13759/2009 O 7. M.K. CHANDRAN, MADAPURA KUNIYIL, -DO- -DO-. 8. M.BALAN, MOTTEMMAL, P.O. PUTHUR PANOOR, PUTHUR AMSOM,DESOM, KANNUR DISTRICT. 9. NARAYANAN NAMBIAR, S/O.KUNHIKRISHNAN, MADAKKAKATH, PUTHUR AMSOM, DESOM,KANNUR DISTRICT. R1 TO R5 & R7 TO R9 BY ADVS. MR.K.V.SOHAN, SMT.SREEJA SOHAN.K. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss S.S. SATHEESACHANDRAN, J. ```````````````````````````````````````````````````` W.P.(C) No. 13759 OF 2009 O ```````````````````````````````````````````````````` Dated this the 9th day of July, 2009 J U D G M E N T The writ petition is filed challenging the order passed by the learned Munsiff, Thalassery, directing the plaintiffs in OS.No.336/05 to value the plaint property strictly in compliance with section 7(3) and 7(3A) of the Kerala Court Fees Act. Suit is one for declaration and consequential injunction and its trial is in progress. The dispute relates to a temple(mudipura) and its properties over which the plaintiffs claim title, right and possession alleging that it belong to their family, which is stoutly challenged by the defendants. In the written statement, disputing the title, right and possession of the plaintiffs among other contentions the defendants also questioned the valuation shown in the plaint and the insufficiency of the court fee for the relief claimed in the suit. However, without framing an issue on the question of valuation and also court fee, the trial of the suit commenced. During the course of recording the evidence of the plaintiffs, they moved an application for amendment of the plaint to seek an additional relief WPC.13759/09 : 2 : of decree of mandatory injunction. The defendants objected to that amendment in which also the question of valuation was raised among other contentions. The court below, after hearing both sides, allowed the amendment application but reserved the questions related to valuation and court fee for consideration later. Once the amendment was carried in the plaint, the court framed an additional issue whether the valuation shown in the amended plaint is proper and correct. After hearing both sides, the court passed the impugned order, a copy of which is produced as Ext.P10, directing the plaintiff to value the plaint in accordance with section 7(3) and 7(3A) of the Kerala Court Fees Act. Under the circumstances, the 2nd plaintiff has filed this writ petition challenging the propriety and correctness of Ext.P10 order invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 2. I heard the counsel on both sides. A copy of the plaint was directed to be produced to examine the reliefs claimed in the suit to appreciate the valuation and also sufficiency of court fee on the reliefs claimed in the suit. Accordingly, the petitioner has produced a copy of the plaint. It is seen from the copy of the plaint WPC.13759/09 : 3 : that the relief claimed is one for declaration of petitioner’s exclusive title and possession over the plaint properties A and B schedule and a consequential prohibitory injunction, against the defendants. A consequential relief of injunction restraining the defendants from interfering with the possession and enjoyment of the plaintiff over the suit properties is also sought for. I am surprised to note in Ext.P10 order the learned Munsiff has expressed a view that by the amendment sought for by the plaintiff in seeking an additional relief of mandatory injunction against the defendants, a question regarding the title has been brought up for adjudication, which in fact was already raised on the existing reliefs in the plaint, and also by the contentions taken by the defendants disputing the title of the plaintiffs over the suit property. It appears while seeking consequential injunction to the declaration of title, the plaintiffs quoted a wrong provision under the Court Fees Act for seeking that relief. When the amendment was moved for a decree of mandatory injunction, it appears, another apparent mistake of seeking it under section 27(a) separately was made, with valuation thereon fixed and court fee paid thereunder. Suit being one for declaration of title with WPC.13759/09 : 4 : consequential injunction, the proposed amendment for mandatory injunction would also fall within the scope of the earlier relief claimed, once it has been allowed by the court. So in any view of the matter, the view taken by the court below that in view of the amendment made for an additional relief of mandatory injunction, question of title arise for consideration and, thus, the plaintiff has to value the suit in accordance with section 7(3) and 7(3A) of the Kerala Court Fees Act is incorrect. Further more, once the trial has commenced no new issue on the question of valuation and sufficiency of the court fee arise for consideration. Though the defendant had raised that contention in their written statement when that challenge is viewed with reference to section 12(2) of the Court Fees Act, it is evident that the court was not invited to enter a decision on that challenge before the commencement of recording of evidence. The defendant who raises a challenge as to incorrectness of valuation and insufficiency of court fee, is required to call upon the court to enter a decision on those aspects before the case is taken up for trial. When that is not done, it amounts to a waiver of the challenge so raised. Of course, the court can examine that question at any stage of the WPC.13759/09 : 5 : suit. But, once the trial has started examining that question again will only stultify the progress of the case. Ext.P10 order in the given facts of the case and also having regard to the provisions of the Court Fees Act is unsustainable and liable to be set aside. Suit shall be proceeded on the basis of the valuation made and court fee paid treating it as sufficient. The learned counsel for the respondents wanted this court to give a direction for expeditious disposal of the suit pointing out that on an earlier occasion also such direction was given though the time limit fixed thereunder has expired, still, the suit is continuing on the file of the court. I direct the court below to give the suit top priority in hearing and to dispose it as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of the judgment, but, after affording reasonable opportunity to both sides to lead evidence in support of their respective cases. Writ petition is disposed as above. Sd/- (S.S. SATHEESACHANDRAN, JUDGE) aks