IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 11TH OCTOBER 2010 / 19TH ASWINA 1932 WP(C).No. 36514 of 2009(O) --------------------------------------- [OS.NO.402/2008 OF II ADDL.MUNSIFF COURT, THIRUVANANTHAPURAM] .................... PETITIONER: ------------------- K.BALAKRISHNAN, MURUKA NIVAS, KOVANDATTIL LANE, SHORNUR ROAD, TRICHUR. BY ADVS. SRI.V.V.ASOKAN, SRI.K.S.SAJEEV KUMAR. RESPONDENT: ---------------------- T.O.CHERUVATHOOR, TC 24/444, SHANTHI NAGAR, THIRUVANANTHAPURAM. BY ADVS. SRI.V.SURESH, SRI.G.SUDHEER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/10/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.36514/2009-O: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE JUDGMENT IN O.S. NO. 1985/1999 OF THE MUNSIFF COURT, THIRUVANANTHAPURAM DTD. 30/11/2001. EXT.P.2: COPY OF THE ORDER IN REPORT NO. 1 IN COMPANY APPLICATION NO. 404/2004 IN C.P. 25/1994 DTD. 22/11/2007. EXT.P.3: COPY OF THE ORDER IN REPORT NO. 2. IN COMPANY APPLICATION NO. 544/2008 IN C.P. 25/1994 DTD. 31/07/2008. EXT.P.4: COPY OF THE E.P. NO. 391/2008 IN O.S. 1985/1999 – MUNSIFF COURT, THIRUVANANTHAPURAM DTD. 30/08/2008. EXT.P.5: COPY OF THE PLAINT IN O.S. NO. 402/2008, MUNSIFF COURT, THIRUVANANTHAPURAM DTD. 01/03/2008. EXT.P.6: COPY OF THE WRITTEN STATEMENT ALONG WITH COUNTER CLAIM FILED IN O.S. NO. 402/2008, MUNSIFF COURT, THIRUVANANTHAPURAM DTD. 27/05/2008. EXT.P.7: COPY OF THE REPORT AND ROUGH SKETCH FILED BY THE ADVOCATE COMMISSIONER BEFORE THE MUNSIFF COURT, THIRUVANANTHAPURAM IN O.S. 402/2008 DTD. 13/03/2008. EXT.P.8: COPY OF THE I.A. NO. 4527/2009 IN O.S. NO. 402/2008 DTD. 12/06/2009. EXT.P.9: COPY OF THE ORDER OF THE MUNSIFF COURT, THIRUVANANTHAPURAM IN I.A. NO. 4527/2009 IN O.S. NO. 402/2008 DTD. 25/07/2009. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO.36514 OF 2009 ------------------------------- DATED THIS THE 11TH DAY OF OCTOBER, 2010 JUDGMENT Petitioner herein is the defendant in O.S.No.402/08 on the file of the II Additional Munsiff's Court, Thiruvananthapuram. The suit was filed for declaration of title and for consequential injunction. Defendant filed written statement and also counter claim praying to issue a mandatory injunction directing the plaintiff to vacate from the ground floor of the building. In Ext.P6 written statement it is inter alia contended that the plaintiff has to value the suit on the market value of the property, as the value claimed is one for declaration of title. Ext.P5 is the copy of the plaint. In paragraph 21 the plaintiff valued A prayer for declaration under Section 25 (b) of the Kerala Court Fees and Suits Valuation Act at Rs.1,000/- and the fee payable is Rs.40. It is said that B prayer is consequential. 2. The specific contention of the petitioner is that -2- WP(C).No.36514/2009 the valuation of the plaint schedule property is not correct. In the written statement and the counter claim it is also contended that the plaintiff has no access to the first floor of the plaint schedule building. In the said context the defendant filed I.A.No.4527/09 under Order XXVI Rule 9 C.P.C. for site inspection. The matters to be ascertained are market value of the plaint schedule property, approximate area, ground floor, first floor, mesne profits of the plaint schedule property, description about the entry to the first floor of the plaint schedule building etc. Ext.P9 is the order passed by the II Additional Munsiff's Court, Thiruvananthapuram in the said IA. The court dismissed the application stating that the ex parte commission report is already before the court ascertaining all the points in the present petition and that a detailed report of the building was submitted by the Advocate Commissioner and therefore there is no need to appoint an Advocate Commissioner to assess the market value of the building and to ascertain the approximate area and plan details of the first floor. It is further -3- WP(C).No.36514/2009 stated that the said facts are not necessary for the adjudication of the suit or counter claim and therefore the petition was dismissed. 3. I have perused the relevant paragraphs in the plaint. The suit is for declaration of title. The valuation portion shows that the plaintiff valued the suit at Rs.1,000/-. The valuation is under Section 25(b) of the Kerala Court Fees and Suits Valuation Act. The the prayer in the suit is for declaration and possession of the property. It is contended by the defendant that since the suit is not valued properly, it is necessary to assess the market value of the property. It is also stated that in the earlier Commission report there is no assessment of the value of the property. The ascertainment of market value of the property under Section 25(b) of the Act is necessary for the purpose of deciding as to whether the proper court fee has been paid or not. From the valuation of the plaint, it is seen that the plaintiff has not resorted to value the plaint on the basis of the market value of the property. In the circumstances, there is no justification for dismissing the -4- WP(C).No.36514/2009 application for commission. Apart from the ascertainment of the market value, certain other matters which are also necessary for the purpose of deciding the proper court fees payable. It may not be correct to say that all the details ascertained by the defendant are contained in the commissioner' report already filed. 4. In the result, Ext.9 order passed by the II Additional Munsiff, Thiruvananthapuram is set aside. The application for issuance of a commission is allowed. The II Additiohnal Munsiff's Court, Thiruvananthapuram is directed to depute an Advocate Commissioner for the purpose of assessment as prayed for in the IA. Writ Petition is allowed. HARUN-UL-RASHID, JUDGE. kcv.