IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 7TH JANUARY 2008 / 17TH POUSHA 1929 WP(C).No. 4 of 2008(A) ------------------------------- PETITIONER: ----------------- PRAHLADAN, S/O. KUMARAN THARAYIL HOUSE, KATTOOR VILLAGE MUKUNDAPURAM TALUK,THRISSUR DISTRICT 680 702. BY ADV. SRI.P.B.SAHASRANAMAN RESPONDENTS: --------------------- 1. ANITHA HARI,W/O. HARI BALAKRISHNAN THANDAYAMPARAMBIL HOUSE, EDAMUTTOOM P.O., VALAPPAD VILLAGE, THRISSUR DISTRICT. 2. PANKAJAKSHI,D/O. MANI KULANGARAPPPURATH HOUSE, WEST OF SNDP TEMPLE, KATTOOR,THRISSUR DISRTRICT 680 702 BY THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 07/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.N.KRISHNAN, J. -------------------------- W.P.(C). NO. 4 OF 2008 --------------------- Dated this the 7th day of January, 2008 J U D G M E N T This writ petition is preferred against the order of the Additional Subordinate Judge, Irinjalakuda in IA 3457/07 in OS 354/06. The said order is passed whereby the court has directed the plaintiff in that suit to pay the court fee as per the market value of the plaint schedule property. 2. Learned counsel for the writ petitioner submits before me that really the import of the prayer in the suit is for a declaration that the document executed is void, though the word is used therein. Secondly, it is contended that neither in the written statement a contention is there regarding the adequacy of the court fee nor there is any issue raised by the court regarding that aspect. A perusal of the order of the court below would reveal that at the stage of evidence, it was admitted by the plaintiff that a cent will cost Rs.40,000/- Learned counsel would submit that it was not the evidence tendered. But the evidence tendered was to the effect that the property is only worth Rs.40,000/-. A reading of Section 12 WPC NO 4/08 2 coupled with the decision of this court reported in We-Build Pvt. Ltd. v. Kamaleswaran [1981 KLT 773] would give the guideline as to when the question of court fee has to be considered, at what all stages it has to be considered. This decision has been considered and distinguished in another decision of this court reported in P.P.S. Pillai v. Catholic Syrian Bank [2000 (3) KLT 629]. There a Division Bench of this court held that if an issue has been raised and that has not been considered as a preliminary issue, the court is not precluded from considering the question of court fee at a later stage. These are all matters, which the court has to take into consideration. Further, the very factum of paying the court fee on the market value of the property will arise when the prayer is under Section 40 of the Court Fee Act. Here it is submitted that the suit is filed under Section 25 (b) of the Court Fee Act and therefore it is the duty of the court to find out under which provision of Section 7 of the Court Fee Act, the court fee has to be paid. Therefore the order under challenge suffers from infirmity and it is set aside. The court below is directed to consider its competency to consider the question of court fee in the light of the decision reported in We-Build Pvt. Ltd. v. Kamaleswaran [1981 KLT 773] WPC NO 4/08 3 and P.P.S. Pillai v. Catholic Syrian Bank [2003 KLT 629] and basically before that to consider whether the prayer in the suit is under Section 40 or Section 25 of the Court Fee Act. Since I am disposing of the matter in the admission stage itself, the court below is directed to give notice to the defendants, consider the question referred to above and then dispose it of in accordance with law. M.N.KRISHNAN, JUDGE vps WPC NO 4/08 4