IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH NOVEMBER 2010 / 27TH KARTHIKA 1932 OP(C).No. 46 of 2010(O) ----------------------- OS.72/2009 of ADDL.SUB COURT, IRINJALAKUDA .................... PETITIONER: ------------------------- CHANDRIKA, AGED 52, W/O.KALLUKARAN VIJAYAN, KODAKARA VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.G.SREEKUMAR (CHELUR) SRI.K.RAVI (PARIYARATH) RESPONDENTS: --------------- 1. LAKSHMI, W/O.AZHAKATH SANKUNNY, KODAKARA VILLAGE, MUKUNDAPURAM TALUK, 680 684. 2. RAMACHANDRAN, S/O.LAKSHMI, KODAKARA VILLAGE, MUKUNDAPURAM TALUK, 680 684. 3. MOHANAN, S/O.LAKSHMI, KODAKARA VILLAGE, MUKUNDAPURAM TALUK, 680 684. ADV. SRI.T.N.MANOJ FOR R1-3 THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 18/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P JOSEPH, J. ---------------------------------------- O.P(C).No.46 of 2010 --------------------------------------- Dated this 18th day of November, 2010 JUDGMENT Respondents appear through counsel. 2. Plaintiff No.1 in O.S.No.72 of 2009 of the court of learned Sub Judge, Irinjalakuda is the petitioner before me challenging Ext.P4, order allowing I.A.No.2379 of 2010 filed by the respondents/defendants. Petitioner/plaintiff No.1 and another filed suit for recovery of possession of the suit property - 97¼ cents with certain structures thereon on the strength of their title. Relief A was valued for `.1,00,000/- based on market value of the property and accordingly court fee was paid under Sec.30 of the Kerala Court Fees and Suit Valuation Act (for short, “the Act”). Relief B, for prohibitory injunction was valued at `.500/- under Sec.27(c) of the Act and court fee was paid accordingly. Respondents/defendants filed I.A.No.2379 of 2010 contending that valuation and payment of court fee are not proper and that the suit property is actually valued more than `.Thirty Lakhs and the Government has notified fair value of the property in the locality accordingly. Learned Sub Judge after hearing both sides held that payment of court fee is not in accordance with Section 7(3A) of the O.P(C).No.46 of 2010 : 2 : Act and accordingly allowed the application obviously indicating that petitioner has to amend the plaint valuing property in accordance with Sec.7(3A) of the Act and pay court fee accordingly. That order is under challenge. Learned counsel for petitioner contends that property involved is agricultural land and that a statement of valuation under Sec.10 of the Act was also filed along with the plaint stating the gross profits from the property and how market value of the property was assessed. According to the learned counsel there is no material on record to show that property in question is non agricultural land for application of Sec.7(3A) of the Act. Learned counsel for respondents contend that there is no averment in the plaint that property is agricultural land and in the circumstances market value could only be assessed in accordance with Sec.7(3A) of the Act. Learned counsel states that even the statement filed by petitioner under Sec.10 of the Act does not show that the market value of the property is `.1,00,000/- as stated in the plaint so far as relief A is concerned. The further contention is that going by the plaint, a declaration has also been prayed for and hence court fee is payable for declaration prayed for as well. 3. The question whether any declaration of title is prayed for or, as contended by learned counsel for petitioner it is only O.P(C).No.46 of 2010 : 3 : recovery of possession on the strength of title are matters which the court below has to decide since the impugned order does not show that any such question was raised, considered or decided by the learned Sub Judge. Now, I am at the question whether learned Sub Judge was right in allowing I.A.No.2379 of 2010 observing that valuation of the property must have been under Sec.7(3A) of the Act. 4. Assessment of market value of the property is to be made as provided under Sec.7 of the Act, wherever court fee payable or valuation of the suit is based on market value of the property involved. Primarily that should depend upon the averments in the plaint. Sec.7(2) of the Act deals with valuation of agricultural land in cases falling under Sec.25, 30 etc of the Act while Sec.7(3A) incorporated by the amendment of 1991 deals with non agricultural land not falling under Sec.7(2) of the Act. Sec.7(3A) of the Act can apply only if property is non agricultural land falling under the category of cases mentioned therein. Here, the property involved is - 97¼ cents with a few structures thereon. It is true that it is not specifically stated in the plaint that property is agricultural land. But, going by the valuation given for relief A and statement filed under Sec.10 (a copy of which is given to me for perusal by learned counsel) it would appear that petitioner has O.P(C).No.46 of 2010 : 4 : treated the property as agricultural land and market value was assessed based on the annual gross profits. Learned counsel for respondents pointed out the apparent contradiction in that statement in that, in column No.3 annual gross profits is stated as `.5,000/- while in column No.5 the market value (which should be 10 times of the annual gross profits less the permissible deduction) is shown as `.1,00,000/-. Certainly, if there is any contradiction that has to be cleared by the petitioner. But, it is seen from the impugned order that it was without sufficient materials that learned Sub Judge came to the conclusion that valuation should be under Sec.7(3A) of the Act as if the property is non agricultural land which of course cannot be sustained. In that view of the matter the impugned order is liable to be set aside. I make it clear that if law provides and if so advised it will be open to the petitioner to state in the plaint specifically (by amendment) as to the nature of property involved. It is open to the learned Sub Judge, if such a course is found necessary to conduct enquiry into the matter under Sec.10 of the Act. But, courts must bear in mind that their valuable time, except when it is necessary, for instance there is gross undervaluation or, it affects jurisdiction of the court is not expected to be spent grappling peripheral issues like valuation and that precious judicial time should be made use of to O.P(C).No.46 of 2010 : 5 : decide the real controversy involved in cases before them. Resultantly this petition is allowed and Ext.P4, order is set aside. I.A.No.2379 of 2010 is remitted to the court below for fresh disposal in the light of the observations made above and after giving petitioner opportunity, if found necessary and if so advised to amend the plaint as law provides. I make it clear that as regards the market value of the property or valuation, it will be open to the respondents to adduce evidence if such a course is found necessary if law provides for that. (THOMAS P JOSEPH, JUDGE) Sbna/-