IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931 WP(C).No. 4780 of 2009(R) --------------------------------------- PETITIONER(S): ------------------------- DR.RNJIT PETER,AGED 34 YEARS,S/O.PETER.K.KURIYAN, KILUTHATTIL HOUSE,THENGODE KARA,KAKKANAD VILLAGE,ERNAKULAM DISTRICT NOW WORKING AS ASST.PROFF, ASSISTANT PROFESSOR, K.S.HEGDE, MEDICAL ACADEMY,MANGALORE,REPRESENTED BY HIS FATHER AND POWER OF ATTORNEY HOLDER,MR.PETER K.KURIEN, KILUTHATTIL HOUSE, THENGODE KARA,KAKKANAD. BY ADVS. MR.C.G.SUNIL, MR.SAJI MATHEW, MR.DENU JOSEPH, MR.JUFIN GEORGE VALOORAN. RESPONDENT(S): --------------------------- 1. N.P.MATHAI, AGED ABOUT 46 YEARS,NENGETH HOUSE, THENGODE.P.O,KAKKANAD. 2. C.T.GEORGE, S/O.THOMAS,AGED 50 YEARS, CHALAYIL HOUSE, THENGODE.P.O,KAKKANAD VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. 3. M.C.KRISHNAN, AGED ABOUT 45 YEARS, MANAPPILLY NJALIL, NEAR RUBBER KADA,MANAKKAKADAVU, THENGODE.PO,KAKKANAD. 4. POOVADAN ELIAS, S/O.KUNJU, AGED ABOUT 49 YEARS, PAVOODATH HOUSE, THENGODE.PO,KAKKANAD-682030. 5. OUSEPH, S/O.KUNJAPPAN, AGED ABOUT 45 YEARS, POLLAKKATTIL,THENGODE.P.O,KAKKANAD-682030. 6. KRISHNAN, S/O.VELAYUDHAN,AGED ABOUT 60 YEARS, MANJERIL HOUSE, THENGODE.P.O,KAKKANAD. R1 BY ADV. MR.P.K.RAVISANKAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.4780/2009 R APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER DTD. 24/01/2009 PASSED BY THE 1ST ADDITIONAL SUB COURT, ERNAKULAM. P2: COPY OF THE PLAINT IN O.S.395/2007 FILED BY THE PETITIONER. P3: COPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS IN O.S.395/2007. P4: COPY OF THE SALE DEED NO.274/1996 OF THRIKAKARA SRO. P5: COPY OF THE PLAINT IN O.S.411/2007. P6: COPY OF THE ORDER IN I.A.3029/2007 IN O.S.411/2007 RESPONDENT BANK DTD. 20/09/2008. P7: COPY OF THE COMMISSION REPORT FILED BY ADVOCATE COMMISSIONER IN I.A.2137/2007 IN O.S.395/2007. P8: COPY OF THE COMMISSION REPORT FILED BY ADVOCATE COMMISSIONER IN I.A.5955/2007 IN O.S.395/2007. P9: COPY OF THE JUDGMENT IN O.S.NO.398/90. P10: COPY OF THE BASIC TAX RECEIPT NO.3091257 DTD. 14/02/2007 ISSUED BY VILLAGE OFFICER. P11: COPY OF THE POSSESSION CERTIFICATE NO.685/2007 DTD.13/03/2007. P12: COPY OF THE RESURVEY SKETCH WITH RESPECT TO FIELD NO.352. P13: COPY OF THE VALUATION STATEMENT FILED BY THE PETITIONER IN O.S.NO.395/2007. P14: COPY OF I.A.NO.2258 A/2009 IN O.S.395/07 FILED BY THE PETITIONER BEFORE THE SUB COURT, ERNAKULAM. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss S.S. SATHEESACHANDRAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.4780 of 2009 - - - - - - - - - - - - - - - - - - - - - - - - - Dated: 8th September, 2009 JUDGMENT The Writ Petition is filed seeking the following reliefs: 1. To call for the records relating to Ext.P1 order and set aside Ext.P1 order declaring that the suit O.S.No.395/2007 pending before the 1st Additional Sub Court, Ernakulam is valued properly under Section 27(c) of the Court Fees & Suits Valuation Act, 1959. 2. To direct the court below to amend the issues deleting the issue No.2 regarding the title of the plaintiff and to frame necessary issues for considering the reliefs sought in the plaint. 2. Petitioner is the plaintiff in O.S.No.395 of 2007 on the file of the 1st Additional Sub Court, Ernakulam. Suit is for injunction and the respondents are the defendants. In the light of the contentions raised by the contesting defendants in their written statements among other issues, the court has raised an issue as to whether the suit has been properly valued and requisite court fee was paid. That issue was considered as a preliminary issue. The learned Sub Judge passed P1 order holding that the suit has not been correctly valued and it should be valued and court fee paid in accordance with Section 27(a) of the Kerala Court Fees and Suits Valuation Act, 1959 (for short 'the Court W.P.C.No.4780/09 - 2 - Fees Act'). Propriety and correctness of that order is challenged in the Writ Petition by the petitioner/plaintiff invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. Learned counsel for the petitioner submitted that the petitioner on the basis of his title claimed possession over the property and a decree of permanent prohibitory injunction was sought on the basis of such possession over the suit property. Suit was correctly and properly valued under Section 27(c) of the Court Fees Act and the court below was not justified in passing P1 order directing valuation of the suit and payment of court fee under Section 27(a) of the above Act, according to the counsel. On the other hand, learned counsel for the respondents inviting my attention to the allegations made in paragraphs 6, 7, 8 and 11 of the plaint contended that the petitioner/plaintiff has practically conceded that there was denial of title of his property by the defendants and as such, an issue as to whether petitioner/plaintiff has title over the property is essential to consider whether a decree of injunction as prayed for is allowable. After filing of this petition, it is submitted by the learned counsel for W.P.C.No.4780/09 - 3 - the petitioner that he has moved an application for deleting the issue raised by the court whether the plaintiff has any title over the suit property, as not necessary for determination of the controversies arising for adjudication. P14 is the copy of the application so moved by the petitioner for deleting the issue relating to the title of the plaintiff over the suit property. 4. Though I do not find much force in the submission of the learned counsel for the respondents and also the reasoning taken by the learned Sub Judge that the allegations in paragraphs 6, 7, 8 and 11 necessarily and inevitably demand raising of an issue as to whether the plaintiff has title over the suit property for adjudicating the controversy involved in the suit which has been filed as a suit for injunction simpliciter, I find when an issue has already been framed, whether the plaintiff has title over the suit property, and an adjudication thereof is invited from the court and until and unless that issue is dispensed with, P1 order cannot be stated to be improper or incorrect. In a suit for injunction, it is open to the court to raise an issue as to whether the plaintiff has title over the suit property for determining the real controversy involved and if such an issue is raised as contemplated under Section 27(a) of the Court Fees Act, W.P.C.No.4780/09 - 4 - plaintiff is bound to pay the court fee in accordance with that provision. Since the petitioner/plaintiff has moved an application for reviewing the issue No.2 settled in the suit as to 'whether the plaintiff is having title over the property as not necessary', I find that question has to be resolved first before entering a finding as to whether the suit is to be valued under Section 27(a) or 27(c) of the Court Fees Act. The court below is directed to consider P14 application in accordance with law and pass appropriate orders. P1 order is set aside subject to the direction that appropriate orders be passed on valuation and court fee on the basis of the disposal of P14 application. Writ Petition is disposed as above. srd S.S. SATHEESACHANDRAN, JUDGE