IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 14TH SEPTEMBER 2009 / 23RD BHADRA 1931 WP(C).No. 22137 of 2007(I) -------------------------- AGAINST THE ORDER DATED 31/05/2007 IN IA. 1022 /2007 IN OS.299/2002 of III ADDL.SUB COURT, KOZHIKODE .................... PETITIONER(S): PETITIONERS 1 AND 2/DEFENDANTS 2 AND 3: ---------------------------------------------------------------------------------------------- 1. ABDUL MAJEED, AGED 45, S/O. ABDUL RAHIMANKUTTY HAJI, KALATHINGAL(H), FEROKE AMSOM & NALLUR DESOM, KOZHIKODE, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER KALTHINGAL MAMMUKOYA, S/O. LATE ABDURAHIMAN KUTTY HAJI, AGED 59 YEARS, KALATHINGAL HOUSE, FEROKE AMSOM AND NALLUR DESOM, KOZHIKODE. 2. MUHAZINA, D/O. ABDUL MAJEED, AGED 20 YEARS, KALATHINGAL HOUSE, FEROKE AMSOM AND NALLUR DESOM, KOZHIKODE. BY ADV. MR.K.M.FIROZ RESPONDENT(S): RESPONDENTS 1 TO 8 AND PLAINTIFFS 1 & 2, DEFENDANTS 1,4, TO 8: -------------------------------------------------------------- 1. SHIHAB RAHIMAN, AGED 20 YEARS, S/O. UMMER, RESIDING AT VELIPRAM AMSOM, NEREMKALLAI DESOM, KOZHIKODE TALUK. 2. SHIFANA, AGED 19 YEARS, D/O. UMMER, RESIDING AT VELIPRAM AMSOM, NEREMKALLAI DESOM, KOZHIKODE TALUK. 3. KALATHINGAL UMMER, AGED 55 YEARS, RESIDING AT VELIPRAM AMSOM, KARINKALLAI DESOM OF KOZHIKODE TALUK. (AGE SHOWN IN THE IMPUGNED ORDER IS NOT CORRECT). Kss ..2/- ...2..... WPC.NO.22137/2007 I 4. BUSHARA, AGED 34 YEARS, RESIDING AT NALLUR AMSOM AND DESOM, KOZHIKODE TALUK. 5. ABDUL RAHIMAN, AGED 28 YEARS, RESIDING AT NALLUR AMSOM AND DESOM, KOZHIKODE TALUK. 6. KUNHEEVI, D/O.MOHAMMED ALI, RESIDING AT NALLUR AMSOM AND DESOM, KOZHIKODE TALUK. 7. ABDUL MANAF, AGED 25 YEARS, S/O. MAMUKOYA, RESIDING AT NALLUR AMSOM AND DESOM, KOZHIKODE TALUK. 8. HABEEB RAHIMAN, AGED 25 YEARS, S/O. ABOOBACKER, RESIDING AT NALLUR AMSOM AND DESOM, KOZHIKODE TALUK. R1 & R2 BY ADVS. MR.GEORGE MATHEW, MR.K.B.SIVARAMAKRISHNAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/09/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.22137/2007 I APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE RELEVANT PORTIONS OF THE COPY OF THE AMENDED PLAINT ISSUED TO THE PETITIONERS. P2: COPY OF THE ORIGINAL WRITTEN STATEMENT SUBMITTED BY DEFENDANTS 2 AND 3. P3: COPY OF THE ADDITIONAL WRITTEN STATEMENT SUBMITTED BY DEFENDANTS 2 AND 3. P3(A): COPY OF THE SECOND ADDITIONAL WRITTEN STATEMENT SUBMITTED BY DEFENDANTS 2 AND 3. P4: COPY OF THE APPLICATION I.A.1022 OF 2007 AND AFFIDAVIT IN SUPPORT OF THE SAME, BOTH DTD. 7/03/2007. P5: COPY OF THE ORDER DISMISSING I.A.NO.1022 OF 2007. P6: COPY OF THE COMMISSION REPORT IN THE ABOVE SUIT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.22137 of 2007 - I --------------------------------- Dated this the 14th day of September, 2009 J U D G M E N T The writ petition is filed seeking the following relief: “To call for the records leading to Exhibit P5 order in I.A.No.1022 of 2007 in O.S.No.299 of 2002 dated 31.05.2007 passed by the III Additional Sub Court, Kozhikode and to set aside the same and to allow I.A.No.1022 of 2007 in O.S.No.299 of 2002 with cost to the petitioners.” 2. Petitioners are the defendants 2 and 3 in O.S.No.299 of 2002 on the file of III Additional Sub Court, Kozhikode. Respondents 1 to 8 are the plaintiffs and the other respondents are defendants 1 and 4 to 8 in the suit. Suit is one for partition. During the pendency of the suit, plaintiff applied for amendment of the plaint to claim additional relief of setting aside a document. That amendment being allowed, necessary changes were made in the plaint including the valuation for the additional relief and court fee payable for such relief. Subsequently, after the case came up for trial and the evidence was partly recorded, the petitioners/defendants 2 and 3 moved and application for framing W.P.(C).No.22137 of 2007 - I 2 additional issue in the suit as to whether the valuation made in the suit and court fee paid is correct. The court below after hearing both sides disposed that application vide Ext.P5 order holding that the valuation made in the suit and court fee paid is correct. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the learned counsel on both sides. 4. Though the learned counsel for the petitioner argued at length challenging the merit of Ext.P5 order pointed out that in the suit before amendment the plaint property is valued at Rs.5 Lakhs and later, in the application for setting aside the order it is shown less. I find the challenge raised by the petitioner after the case has come up for trial on the question of valuation and court fee could not be entertained. This Court in We Build Pvt.Ltd. v. C.Kamaleswaran (1981 KLT 773) has held that any enquiry on the valuation and also on the court fee has to be dealt with before commencement of trial. It has been held in the above decision analysing Section 12(2) of the Court Fees Act that once W.P.(C).No.22137 of 2007 - I 3 the suit has entered the stage or recording evidence affecting the on the merit of the suit claim court cannot take up the question of valuation and also sufficiency of the court fee to be paid on the suit claim. So without going into the merit of Ext.P5 order, the writ petition is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-