IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 16TH JANUARY 2009 / 26TH POUSHA 1930 Tr.P(C).No. 29 of 2009 ----------------------------------- OS.74/2007 of PRINCIPAL SUB COURT, KOCHI .................... PETITIONER: K.C.JACOB, S/O.LATE KALARICKAL CHACKO, RESIDING AT XVIII/1290, KALARICKAL HOUSE, PALLURUTHY, KOCHI-6. BY ADV. SRI.JOSHI N.THOMAS RESPONDENT: K.C.TOMY, S/O.LATE KALARICKAL CHACKO, RESIDING AT XVIII/228, BEHIND PALLURUTHY POLICE STATION, PALLURUTHY, KOCHI-6. THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 16/01/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K.P. Balachandran, J. -------------------------- Tr.P.(C)No.29 of 2009 -------------------------- ORDER Petitioner is the first defendant in O.S.No. 74/07 on the file of the Sub Court, Kochi. The grievance of the petitioner is that the Sub Judge, Kochi is taking a partisan attitude and that therefore, O.S.No.74/07 aforesaid be transferred to some other court. The reasons submitted by the learned counsel for the petitioner are that though the plaintiff and the defendants filed draft issues in the suit, the court accepted only the issues suggested by the plaintiff; that the petitioner moved I.A.No.622/08 to consider the draft issues submitted by him as well and that the learned Sub Judge, vide Annexure-V order, dismissed the said application holding that it is not maintainable, since she has gone through the pleadings of either side and also through the draft issues submitted by both sides and accordingly raised the issues. 2. The above order was assailed by the petitioner before this Court filing W.P.(C) TPC 29/09 2 No.15792/08 and this Court, vide Annexure-VI judgment, disposed of the writ petition observing that the fact that either plaintiff has filed a draft issue or the defendants have filed, does not mean that the court has to accept the same; that it is for the court to frame the material issues relevant and necessary for disposing of the case based on the pleadings and therefore, there is no reason to interfere with the issues framed by the trial court; that however, in I.A.No.622/08, there was no specific prayer to frame any particular issue and there is no reason to interfere with the said order and that if the grievance of the petitioner is that any particular issue, which arises on the pleadings and necessary to be decided for disposing of the suit, is not framed, petitioner is at liberty file a petition specifically requesting the court to frame that issue as an additional issue and that the court shall consider the petition on merits and pass appropriate orders. TPC 29/09 3 3. Pursuant to the disposal of the above writ petition vide Annexure-VI judgment, petitioner moved Annexure-VII application (I.A.No.876/08) praying for an additional issue being raised to the following effect: “Whether the court fee paid is sufficient?” Obviously, the said issue is irrelevant for the reason that in a suit valued under Section 37(2) of the Kerala Court Fees and Suit Valuation Act (hereinafter referred to as 'the Act') court fee payable has been paid. The real issue should have been whether the suit has been properly valued and court fee paid. However, the court considered the said issue and rendered Annexure-X order holding that the court fee paid under Section 37(2) of the Act is sufficient and proper, consequent on the observation made by the court below that though the first defendant argued that the court fee has to be paid under Section 37(1) of the Act, it is the averments in the plaint that has to be the basis TPC 29/09 4 for valuation of the suit for the purpose of payment of court fee in a suit for partition and not the averments in the written statement and that the plaint averments do not indicate that the plaintiff has been excluded from possession. The finding rendered by the court below cannot be viewed as an order passed taking any partisan attitude. In the nature of the issue that was raised as desired by the petitioner, it was sufficient for the court to say that the court fee paid under Section 37(2) of the Act is sufficient without observing anything about the valuation. Thus, the petitioner also committed errors and there is no meaning in raising a complaint against the officer concerned. There is no merit in this transfer petition and the transfer has been moved on account of misunderstanding of the party or the counsel as regards position of law. This transfer petition is dismissed. 16th January, 2009 (K.P.Balachandran, Judge) tkv