IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 16TH NOVEMBER 2010 / 25TH KARTHIKA 1932 OP(C).No. 746 of 2010(O) ------------------------ IA NO.1310/2010 IN OS.197/2010 of MUNSIFF COURT, VAIKOM .................... PETITIONER ------------------------------ BIJU, AGED 40 YEARS, S/O.KUTTAPPAN, KANAMATTATHIL HOUSE, KATTAMPACK, NJEEZHOOR, VAIKOM. BY ADV. SRI.M.J.THOMAS RESPONDENT(S): --------------- ANITHA, W/O.HARIDASAN, THADATHIL HOUSE FROM PUTHIYIDATHU PARAMBIL, PUTHUSSERY KARA, MUTTUCHIRA, VAIKOM- 686141. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 16/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- O.P.(C) No.746 of 2010 -------------------------------------- Dated this the 16th day of November, 2010. JUDGMENT Defendant in O.S.No.197 of 2010 of the court of learned Munsiff, Vaikom is aggrieved by Ext.P4, order dated September 20, 2010 on I.A.No.1310 of 2010 allowing an application for amendment of plaint in the matter of payment of court fee and assessment of market value for the said purpose. Respondent sued petitioner for a decree for prohibitory injunction against trespassing into the suit property and forcible eviction. Respondent claimed title and possession as per a Will allegedly executed by the late Nellakandan. Respondent paid court fee under Section 27(c) of the Kerala Court Fees and Suits Valuation Act (for short, “the Act”) as if it is a simple suit for injunction based on possession. In Ext.P2, written statement petitioner not only denied title and possession claimed by the respondent but also execution of the Will. Learned Munsiff framed an issue regarding title claimed by the respondent. Respondent filed Ext.P3, application to amend the plaint and pay court fee under Section 27(a) of the Act on one half of market value of the property. That application was objected by petitioner but allowed by the learned Munsiff vide Ext.P4, order which is under challenge. Contention raised is that the suit itself is bad for non-joinder of parties and that amendment prayed for is not permissible. OP(C) No.746/2010 2 2. I do not find any infirmity in the order under challenge on going through that order and hearing learned counsel. In the light of denial of title and due execution of Will made by petitioner, an issue regarding title was framed and going by Section 27(a) of the Act, when an issue regarding title is framed and an enquiry into title is necessary, plaintiff should have to pay court fee under Section 27(a) of the Act on one half of market value of the property. It is in the light of that, respondent was constrained to file Ext.P3, application to amend the plaint to pay court fee under Section 27(a), instead of Section 27(c) of the Act, on one half of market value of property and for the purpose of valuation, market value of property was taken as Rs.30,000/-. Respondent wanted to pay court fee on one half of that market value so fixed on the basis of gross profits from the property. There is nothing illegal in the order under challenge. 3. If petitioner has a contention that in the absence of necessary parties a decision on genuineness of the Will cannot be made it is open to the petitioner to pursue that contention if it arises from his pleadings. Petition is dismissed. THOMAS P.JOSEPH, Judge. cks