IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 13TH NOVEMBER 2008 / 22ND KARTHIKA 1930 WP(C).No. 24263 of 2008(L) ------------------------------------- AGAINST THE ORDER IN IA.434/07 IN OS.233/2003 of MUNSIFF COURT, TIRUR .................... PETITIONER(S): PETITIONER ----------------------------------------- 1. C.X. ANTONY, S/O. XAVIER, PARAPPURATH BUILDING, THAZHEPPALAM, TIRUR TALUK, MALAPPURAM DISTRICT. 2. MICHAEL, S/O. ROCKY, TIRUR WOOD INDUSTIES, THAZHEPALAM, TIRUR, MALAPPURAM DISTRICT. BY ADV. SRI.K.RAMACHANDRAN SRI.S.SREEDEV RESPONDENT(S): RESPONDENTS ------------------------------------------------ 1. BISHOP OF THAMARASSERY BISHOP HOUSE, THAMARASSERI, KOZHIKODE DISTRICT. 2. VICAR, ST. MARYS CHURCH, THAZHEPALAM, TIRUR MALAPPURAM DISTRICT. ADV. SRI.TOM K.THOMAS FOR R1 & R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/10/2008, THE COURT ON 13/11/2008 DELIVERED THE FOLLOWING: W.P(C) NO. 24263 of 2008 ---------------------------------------- APPENDIX --------------- PETITIONER'S EXHIBITS: ---------------------------------- EXHIBIT P1 TRUE COPY OF I.A. NO.434/2007 IN O.S. NO.233 OF 2003 FILED BY THE PETITIONERS BEFORE THE MUNSIFF'S COURT, TIRUR. EXHIBIT P2 TRUE COPY OF THE PLAINT IN O.S. NO.233 OF 2003 FILED BY THE PETITIONERS BEFORE THE MUNSIFF'S COURT, TIRUR. EXHIBIT P3 TRUE COPY OF THE COUNTER STATEMENT FILED BY THE FIRST RESPONDENT IN I.A. NO.434/2007 IN O.S. NO.233 OF 2003 BEFORE THE MUNSIFF'S COURT, TIRUR. EXHIBIT P4 TRUE COPY OF THE ORDER DATED 7.6.2008 IN I.A. NO.434 OF 2007 IN O.S. NO.233 OF 2003 OF THE MUNSIFF'S COURT, TIRUR RESPONDENTS' EXHIBITS: NIL ------------------------------------- THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = W.P(C) No. 24263 of 2008 = = = = = = = = = = = = = == = = = = = = = = = = = Dated this the 13th day of November, 2008 J U D G M E N T ---------------------- Exhibit P4, order dated 7.6.2008 in I.A. No.434 of 2007 in O.S. No.233 of 2003 of the court of learned Munsiff, Tirur is under challenge in this proceeding under Article 227 of the Constitution. 2. Heard both sides. 3. Short facts necessary for the disposal of this petition are: Petitioners, claiming to be members of the Christian Community and permanent residents of Tirur filed O.S. No.233 of 2003 for a declaration that the property scheduled in the plaint exclusively belonged to “Christ The King Mission Centre”, said to be an unregistered Society (for short, “the Society”) in ownership, title, possession and administrative control, that the respondents- defendants have no right or interest over the said property and for consequential prohibitory injunction. Petitioners claimed that the Christians of Tirur formed the Society and that the Society raised funds and purchased the schedule property. According to the petitioners, there are numerous members in the Society and hence, they filed the suit under Order I Rule 8 of the Code of Civil Procedure(for short, “the Code”) on behalf of themselves and on behalf of other Christian W.P(C) No.24263 of 2008 -: 2 :- residents of Tirur who are members of the Society. For the purpose of payment of court fee, petitioners valued the prayer for declaration under Section 25(b) of the Kerala Court Fees and Suits Valuation Act (for short, “the Act”). Respondents denied the various claims in the plaint (Exhibit P2) and contended that valuation and court fee paid are not proper. In the light of that contention, learned Munsiff framed an issue regarding court fee and decided that issue as preliminary as required under Section 12 of the Act. Learned Munsiff, as per order dated 10.1.2007 held that the properties are undervalued and directed the petitioners to give proper valuation under Section 25(b) and pay court fee accordingly. An Advocate Commissioner was appointed to assess the value of the property. Commissioner filed report. At that juncture, petitioners filed I.A. No.434 of 2007 for amendment of the plaint under Order 6 Rule 17 of the Code. By amendment, petitioners wanted to value the reliefs for payment of court fee as under Section 28 of the Act instead of Section 25(b) of the Act as pleaded in the plaint. That application was opposed by the respondents. Learned Munsiff as per the impugned order (Exhibit P4) refused amendment. Learned counsel for petitioners contended that learned Munsiff overstepped his jurisdiction while considering I.A. No.434 of 2007. According to the learned counsel, while considering that application W.P(C) No.24263 of 2008 -: 3 :- learned Munsiff was only required to consider whether application is bona fide. Merit of the matter sought to be amended should not have been gone into. It is also contended that at any rate it is Section 28 of the Act that is applicable for the purpose of valuation. Learned counsel for the respondents per contra, contended that the order under challenge is legal and proper. 4. General principle regarding amendment of pleadings informs me that while considering the prayer for amendment, the court is not required to go into the merits of the claim sought to be incorporated by amendment. What is required to be considered is whether the application is bona fide. Learned Munsiff had, on the contention raised by the respondents that valuation of the reliefs is not proper, raised an issue regarding undervaluation, heard both sides, found that valuation is not proper and directed the petitioners to give proper valuation under Section 25(b) as pleaded in the plaint and pay court fee accordingly. Finding on that issue has not so far been challenged by the petitioners. It is after that finding was entered that the petitioners have chosen to file I.A. No.434 of 2007, where the amendment sought for is to delete Section 25(b) from the valuation portion of the plaint and incorporate Section 28 of the Act. It is in the above situation that learned Munsiff considered whether Section 28 of W.P(C) No.24263 of 2008 -: 4 :- the Act has application. It is also to be borne in mind that both sides addressed arguments before the learned Munsiff as to the application of Section 28 of the Act to the facts of the case. That question was also referable to the question of bona fides in making the application. In the circumstances, learned Munsiff is justified in going into the question whether Section 28 of the Act is applicable. It would have been an empty formality in the facts and circumstances of the case to allow the amendment and then consider the application of Section 28 of the Act. 5. What is required to be considered is whether learned Munsiff is correct in holding that Section 28 of the Act is not applicable. I stated that petitioners claimed to be members of an unregistered Society which claimed ownership and possession over the schedule property to the exclusion of respondents. It is apposite to refer to Section 28 of the Act. The provisions reads: 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 trustee or between a trustee and a person who has ceased to be trustee, fee shall be computed on one-fifth of the W.P(C) No.24263 of 2008 -: 5 :- 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 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 therefore” (emphasis supplied). 6. Section 28 of the Act has application only when the suit is for possession or joint possession of trust property or for a declaratory decree with or without consequential reliefs in respect of such trust property “between trustees or rival claimants to the office of trustee or between a trustee and a person who has ceased to be a trustee. 7. 'Trust' is an obligation annexed to the ownership of property and arising out of a confidence reposed in and accepted by the owner or declared and accepted by him for the benefit of another or of another and the owner. Trustee is a person in whom the author of the Trust has reposed or declared confidence. I have gone W.P(C) No.24263 of 2008 -: 6 :- through Exhibit P2, plaint and Exhibit P1, application for amendment and did not find any statement to the effect that petitioners are trustees or, are claimants to the office of the trustee or are persons who ceased to trustees. Nor is it the case of the petitioners that the respondents are trustees or, claimants to the office of the trustee, or persons who ceased to be trustees. According to the petitioners, respondents are strangers who have no right or interest over the property but who attempted to trespass into the property. If that be so, Section 28 has no application, as rightly found by the learned Munsiff. 8. Learned counsel for the respondents contended that even in the application for amendment there is no claim either that the Society is a trust or, a deemed trust as stated in the Explanation to Section 28 of the Act. According to learned counsel for petitioners, fact that Society is a charitable endowment is not disputed by the respondents and at any rate, it is a deemed trust as stated in the Explanation to Section 28 of the Act and hence it is not necessary to be pleaded in the plaint. Learned Munsiff observed that having gone through the written statement it could not be discerned that there was any admission that the Society is a religious endowment. Suffice to say that there is pleadings in the plaint to that effect also and no such W.P(C) No.24263 of 2008 -: 7 :- averment is sought to be incorporated by the amendment in question. 9. In this case when the petitioners valued the relief under Section 25(b) of the Act, learned Munsiff framed an issue regarding undervaluation. Petitioners suffered an order against them. It is thereafter that without challenging that order and without praying for any amendment in the body of the plaint that petitioners wanted to claim the benefit of Section 28 of the Act. Learned counsel for the respondents is justified in contending that there is no bona fides in the application for amendment as the attempt is to get over the finding regarding undervaluation without even challenging that finding. 10. I do not find any error of jurisdiction or illegality committed by the learned Munsiff in dismissing I.A. No.434 of 2007. As such interference under Article 227 of the Constitution is not called for. Writ Petition fails and it is dismissed. THOMAS P.JOSEPH, JUDGE. vsv