IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN WEDNESDAY, THE 26TH MARCH 2008 / 6TH CHAITHRA 1930 WP(C).No. 30467 of 2007(B) -------------------------- I.A.NO.3290/07 IN OS.1004/2000 of ADDL.MUNSIFF COURT, KOLLAM .................... PETITIONER: ------------ J.BHARATHAN, AGED 49, S/O.JANARDHANAN, POTHUVASSERIL VEEDU, PANTHRANDU MURI, THATTAMALA P.O., KOLLAM. BY ADV. SRI.T.M.CHANDRAN SRI.S.SUJITH SRI.V.A.SASIDHARAN SRI.JOSEPH ALBIN NEDUNTHALLY RESPONDENTS: ------------- 1. N.THULASEEDHARAN, AGED 56, S/O.NANU POTHUVASSERIL VEEDU, PANTHRANDU MURI, THATTAMALA PO, KOLLAM. 2. KALYANI, D/O.KUNJELI, -DO- -DO-. 3. V.SALIM BABU, AGED 48 YEARS, S/O.VAMADEVAN -DO- -DO-. 4. HARIDASAN, AGED 72 YEARS, S/O.VELAYUDHAN, -DO- -DO-. R1 & R2 BY ADV. SRI.S.VASUDEVAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/03/2008, ALONG WITH WPC NO. 36175 OF 2007 THE COURT ON 26/03/2008 DELIVERED THE FOLLOWING: WP(C) No. 30467/2007 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF THE PLAINT IN O.S.1004/00 ON THE FILE OF ADDL.M.C.KOLLAM. P2 : COPY OF I.A.NO.3290/07 IN OS 1004/00 OF ADDL.M.C.KOLLAM. P3 : COPY OF OBJECTION TO I.A.NO.3290/07 IN O.S.1004/00. P4 : COPY OF ORDER IN I.A.NO.3290/07 IN O.S.1004/00 OF ADDL.M.C.KOLLAM DATED 30/7/07. RESPONDENT'S EXHIBITS R1(a) : COPY OF THE DEPOSITION OF PETITIONER IN OS NO.1004/2000. // TRUE COPY // PA TO JUDGE. jg M.N. KRISHNAN, J. = = = = = = = = = = = = = = W.P.C. NOs. 30467 OF 2007 & 36175 of 2007 = = = = = = = = = = = = = = = Dated this the 26th day of March, 2008. J U D G M E N T WPC 30467/07 is preferred with a prayer to set aside Ext.P4 order and the other writ petition is filed with a prayer to set aside Ext.P2 order. A reference to the prayer in the plaint is necessary for a proper appreciation of the case. 2. The prayer in the suit is to declare boundaries separating the plaint A schedule property from B, C and D schedule properties and fixing the boundary by the Court and for consequential injunction. The Court fee was paid under Section 25(b) of the Kerala Court Fees and Suit Valuation Act. It appears that the defendant has raised a contention challenging the correctness of the valuation of the property and Court fee. Unfortunately the matter was dragged on, evidence was over and I am informed that after taking the case for judgment the learned Munsiff directed the plaintiff to take steps to amend the plaint and directed him to pay the W.P.C 30467 & 36175 OF 2007 -:2:- Court fee under Section 50 of the Court Fees Act. The learned counsel for the writ petitioner strongly contends before me the following points: (1) The plaintiff having selected to pay Court fee under Section 25(b) of the Kerala Court Fees Act, should have correctly shown the market value of the property and should have paid the Court fee. (2) The Court was not competent to reopen the case and direct the plaintiff to amend the plaint and pay Court fee under Section 50 of the Court Fees act. The learned counsel also invited my attention to the various provisions under Section 12 of the Kerala Court Fees Act which really puts a check regarding the stage at which the question of Court fee is to be considered. According to him when the stage of evidence is over the Court cannot consider that question. Suppose the said argument of the learned counsel is accepted then it will come to a position where the question of correctness of the Court fee cannot be decided by the Court. Or in other words the issue regarding the Court fee cannot be W.P.C 30467 & 36175 OF 2007 -:3:- considered by the Court. Therefore, sufficiency or insufficiency of payment of Court fee may not loom large at all for the determination of this case. Now, the question is whether a civil Court can consider this question at a belated stage has been the subject matter of decisions and this Court has held that one shall not be allowed to circumvent the law and surpass payment of Court fee by resorting to technical plea of the stage regarding the consideration of Court fee. So really speaking the correctness of the Court fee is a question between the Court and the plaintiff and the defendant is a person who really aids the Court to bring about the materials to find out the correctness of the payment of the Court fee. Now, the learned Munsiff has held that the suit is only one for a declaration of the boundary and as there is no specific provision embodied in the civil Court Act relating to the same, Court fee is to be paid under Section 50 where it is captioned as suits not otherwise provided for. A perusal of the provisions of the Court Fees Act does not shown any provision relating to the same. Therefore I do not find fault W.P.C 30467 & 36175 OF 2007 -:4:- with the Munsiff when he wanted to put the things in order by invoking his inherent powers to correct the section of the Court fee under which it is to be valued. So it is only in that aspect the learned Munsiff has reopened the case and has passed orders. Therefore, though it is a belated stage, still the principles of natural justice and the eagerness of the Munsiff to do things correctly has resulted in the direction to amend the plaint as stated in Section 50 the Court Fees Act. Therefore I do not find any ground to interfere with the said decision rendered by the Court below. Therefore both these writ petitions are dismissed. M.N. KRISHNAN, JUDGE. ul/-