IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 W.P(C).No. 26125 of 2008(I) -------------------------- PETITIONER: ------------ NAMBOORIKKANDY AMMAD, S/O.IMBICHIMOITHY, ARIKKULAM AMSOM,KOYILANDY TALUK REPRESENTED BY POWER OF ATTORNEY HOLDER- VARARUKANDY MADHAVAN NAIR. BY ADV. SRI.V.V.ASOKAN SMT. S. AMINA RESPONDENT: ------------- KOLARAKUTTIYIL BASHEER, KEEZHARIYUR AMSOM, NADUVATHUR DESOM, KOYILANDY TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... WP(C).No. 26125 OF 2008 ............................................ DATED THIS THE 29th DAY OF AUGUST, 2008 JUDGMENT Petitioner is the plaintiff and respondent,the defendant in O.S.45 of 2007 on the file of Sub Court, Koyilandy. Petitioner instituted the suit for a decree for assignment of 5/6 shares due to respondent in favour of petitioner in exercise of the right of preemption. Respondent, along with the written statement preferred a counter claim for a decree for assignment of 1/6 share due to petitioner and that is also exercising the right of preemption. Alternatively he sought a decree for partition and separation of his 5/6 shares in the plaint schedule property. Respondent raised a contention that the court fee paid on the plaint is insufficient. Petitioner raised a contention in the written statement filed to the counter claim that counter claim is barred by limitation and court fee paid is also insufficient. Learned Sub Judge, as per order dated 8.8.2008 entered a finding on issue Nos.6, 8 and 9. Under issue No.6, learned Sub Judge found that court fee paid by petitioner is not sufficient and court fee is to be paid as provided under Section 32 of Kerala Court Fees and Suit Valuation Act and he had shown a valuation less than the value WP(C) 26125/2008 2 shown in the document and therefore directed petitioner to take steps to get valuation corrected and to pay required court fee. On issue Nos.8 and 9, Sub Judge found that the counter claim is not barred by limitation and court fee has been paid under Section 37(1) and 42, which is payable and therefore those issues are answered in favour of respondent. This petition is filed under Article 227 of Constitution of India challenging Ext.P4. 2. Learned counsel appearing for petitioner was heard. 3. In view of the order to be passed in this petition, it is not necessary to issue notice to the respondent. 4. Being a suit for preemption, court fee has to be paid as provided under Section 32 of Kerala Court Fees and Suit Valuation Act. Under Section 32, in a suit to enforce a right of preemption, fee shall be computed on the amount of consideration of sale which the preemptor seeks to avoid or on the market value whichever is less. Finding under issue No.6 is that the valuation made in the plaint is only for Rs.2,00,000/- and it should have been for the value of the property shown in Ext.A1, viz Rs.3,35,500/-. Learned Sub Judge evidently omitted to look into Section 32, which provides that plaintiff has to pay WP(C) 26125/2008 3 court fee either on the amount of consideration of sale which he seeks to avoid or on the market value, whichever is less. As per the document, petitioner is having 1/6 shares. Therefore he need not pay the court fee for the entire value of the property shown in the document and need only pay for the portion of the consideration of remaining sharers. This aspect was not taken note of by the learned Sub Judge. Therefore issue No.6 has to be reconsidered. 5. True, when there is an alternative prayer for partition, suit cannot be dismissed even if the claim for preemption is barred by time. But question is whether finding of the learned Sub Judge that correct court fee has been paid on the counter claim for partition is correct. What was found by learned Sub Judge is that court fee is payable under Section 37(1) and it has been paid. Sub-section 1 of Section 37 provides for payment of court fee in a case where the plaintiff is excluded from possession. In that case, court fee is payable computing the market value of the share of the plaintiff. On the other hand, if the case of plaintiff is that he is in joint possession, fixed court fee as provided under sub-section 2 of Section 37 is to be paid. Therefore court fee is payable under sub-section 1 of Section 37 WP(C) 26125/2008 4 and it is to be paid on the market value of the share of the plaintiff. Counter claim shows that court fee paid is only Rs.300/- and the market value of the share of plaintiff shown is Rs.67,100/-. If that is the case and court fee is payable under Section 37(1) as found by learned Sub Judge, it may not be sufficient. This aspect was also not taken note of by learned Sub Judge. In such circumstances, Ext.P4 order is quashed. Learned Sub Judge is directed to consider all the issues afresh and pass appropriate order in accordance with law. M.SASIDHARAN NAMBIAR, JUDGE lgk/-