IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE PIUS C.KURIAKOSE FRIDAY, THE 30TH JANUARY 2009 / 10TH MAGHA 1930 WP(C).No. 7523 of 2007(U) ------------------------- AGAINST THE ORDER IN IA 5550 2005 IN OS.1173/2004 of I ADDL.M.C.,ERNAKULAM .................... PETITIONER(S): --------------- THE SEVENTH-DAY ADVENTIST CHURCH MANAGEMENT CONSTRUCTION COMMITTEE, KALOOR - REPRESENTED BY ITS SECRETARY WILBER SUNIL DAVID, S/O. VARGHESE DAVID, AGED 46 YEARS, ADVENTIST HOME PALARIVATTOM, COCHIN - 682 017. BY ADV. SRI.VELLAYANI SUNDARARAJU SMT.P.MEENAKUMARI RESPONDENT(S): --------------- 1. NORTH KERALA SEDTION OF SEVENTH DAY ADVENTISTS, REPRESENTED BY ITS TREASURER P.A.VARGHESE, AGED NEARLY 50 YEARS, S/O.P.M.ABRAHAM, MOOSPET ROAD, EVERGREEN LANE, THRISSUR. 2. INDIA FINANCIAL ASSOCIATION OF SEVENTH-DAY ADVENTISTS - REPRESENTED BY ITS SECRETARY, JEEVAN JYOTHI HOUSE, TAMIL NADU. 3. SOLOMON, FATHER'S NAME NOT KNOWN, AGED 46 YEARS, CONTRACTOR, KURICHIPARAMBIL, KATHRUKKADAVU, KALOOR P.O., COCHIN-17 ADV. SRI.JIJO PAUL FOR R1 GOVERNMENT PLEADER SRI.BASANT BALAJI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.7523/2007 APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF LETTER OF 2ND RESPONDENT DATED 30/5/2003. EXT.P2: COPY OF WRITEEN STATEMENT OF RESPONDENTS 1 AND 2 IN O.S.1173/2004 DATED 8/11/2004. EXT.P3: TRUE COPY OF AFFIDAVIT AND PETITION IN I.A. NO.5550/2005 IN O.S. NO.1173/2004. EXT.P4: COPY OF ORDER IN I.A. NO.5550/2005 DATED 4/7/2005. EXT.P5: COPY OF ORDER IN I.A. NO.5550/2005 DATED 1-2-2007 /TRUE COPY/ P.A. TO JUDGE. PIUS.C.KURIAKOSE J. ------------------------ W.P.(C)No. 7523 OF 2007 ------------------------ Dated this the 30 the day of January, 2009 JUDGMENT Under challenge in this writ petition under Article 227 of the Constitution is Ext.P5 order passed by the learned Munsiff in I.A. No.5550/2005, an application under Order VI Rule 17 of the C.P.C.for amendment of the valuation portion of the plaint. The suit is instituted for the following reliefs; a). A declaration that the plaintiff has the exclusive possession and control over the newly constructed plaint schedule church building and its premises. b). A permanent prohibitory injunction restraining the defendants from trespassing into the plaint schedule church etc. c). A mandatory injunction to the defendants to refix the doors and windows forcefully removed and taken away by them from the plaint schedule property. 2. Relief (a) was valued in terms of Section 25 (d) (i) of the Kerala Court Fee and Suits Valuation Act at Rs.1,000/- on the premise that the subject matter is not capable of valuation. Relief Nos. (b) and (c) were valued under Section 27(c) of the WPC.No.7523/2007 2 Act. The plaintiff petitioner is the Seventh Day Adventist Church Management, Construction Committee. The first defendant in the suit is the North Kerala Section of Seventh Day Adventists. The second defendant is the India Financial Association of Seventh-day Adventists and the 3rd defendant is a private party, who was engaged as contractor for carrying out construction of the Church. 3. Following averments in Paragraph 3 of the plaint are to be noticed. “The first defendant is a local section of the seventh Day Adventist Denomination which is a protestant Christan denomination having its office at Thrissur. Its' Head Quarter office in India is at Hosur, Tamil Nadu. It is not a registered body, nor it a Trust or a registered company. Its administrative jurisdiction is from Kottayam to Kasargod Districts of Kerala. The 2nd defendant is a registered company of the Seventh Day Adventists for the purpose of holding properties for various institutions of them throughout India”. 4. The defendants would inter alia contend that the suit has WPC.No.7523/2007 3 not been properly valued and that the court fee paid is insufficient. In the light of that contention, Ext.P3 amendment application was filed seeking, as already indicated, amendment of the valuation portion. Significantly no amendment of paragraph 3 of the plaint was sought for. Amendment was sought for as to correct the valuation of the suit in terms of Section 28 of the Kerala Court Fees & Suits Valuation Act, which is extracted below. “28. Suits relating to trust property :- In a suit for possession or joint possession of trust property or for a declaratory decree, whether with or without consequential relief in respect of it, between trustees or rival claimants to the office of trustees or between a trustee and a person who has ceased to be trustee, fee shall be computed on one – fifth of the market value of the property subject to a maximum fee of rupees two hundred or where the property has no market value on rupees one thousand; Provided that, where the property does not have a market value, value for the purpose of determining the jurisdiction of Courts shall be such amount as the plaintiff shall state in the WPC.No.7523/2007 4 plaint. Explanation:- For the purpose of this section, property comprised in a Hindu, Muslim or other religious or charitable endowment shall be deemed to be trust property and the manager of any such property shall be deemed to be the trustee thereof. “ 5. The learned Munsiff under the impugned order has dismissed the amendment application finding that the Section 28 of the Court Fees and Suits Valuation Act cannot have any application in this suit where even going by the admissions in the plaint, the suit is not one which is covered by Section 28. Apart from dismissing the application, the learned Munsiff noticed the averments in the affidavit in support of the amendment application that the market value of the Church building is Rs.25,18,750/- and directed the plaintiff to amend the plaint in accordance with the section 25 (d) (i). 6. I have heard the submissions of Sri.Vellayoni Sunder Raju, learned counsel for the petitioner and those of Sri. Jijo Paul, learned counsel for the contesting respondents. My WPC.No.7523/2007 5 attention was drawn by Sri.Sunder Raju to explanation to Section 28 of the Act. He also submitted that Ext.P1 bye laws and working policy of the second defendant was produced pursuant to the direction issued by the court. He submitted that in page 53 of Ext.A1, it is clearly stated that the second defendant l hold the properties as trustees of the Seventh-day Adventist Educational Institutions. He would argue that a conjoint reading of Ext.A1 and the explanation to Section 28 of the Kerala Court Fees and Suits Valuation Act will reveal that the suit property is trust property and that the plaintiff is a deemed trustee and the suit is instituted against the second defendant trustee. The above submissions of Sri.Sunder Raju was resisted by Sri.Jijo Paul, learned counsel for the respondents. 6. I am not impressed by the submissions of Sri.Sunder Raju. I do not think that a case is made out for invocation of the jurisdiction under Article 227 which is visitorial in nature. The impugned order cannot be said to offend provisions of law statutory or settled. The order is not of such a nature as to be branded as a perverse order in the sense that such an order will not be written by anybody having reasonable training in law. On WPC.No.7523/2007 6 merits also, I am of the view that the learned Munsiff cannot be blamed for having refused to accept the petitioner's case that Section 28 applies. As already, indicated, the averments in paragraph 3 of the plaint stand unamended. When going by the admissions in the plaint itself, Section 28 cannot apply, I do not find any warrant for interfering with Ext.P5 and that too invoking the visitorial jurisdiction which is to be invoked only in exceptional circumstances. The writ petition fails and the same will stand dismissed. PIUS.C.KURIAKOSE,JUDGE dpk