IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 31ST MARCH 2010 / 10TH CHAITHRA 1932 WP(C).No. 5137 of 2010(O) ------------------------- OS.412/2007 of II ADDL.SUB COURT,KOZHIKODE .................... PETITIONER: --------------- AREDATH PRABHAKARAN NAIR, S/O.AREDATH MADHAVI AMMA, XIX/124, PRABHA PULIKKAL, PANTHEERPADAM, KUNNAMANGALAM AMSOM DESOM, KOZHIKODE TALUK. BY ADV. SMT.T.RESMI DAMODARAN SRI.P.P.RAJEEV LAXMAN RESPONDENTS: --------------- 1. A.J.MARY, W/O.AREDATH KUMARAN NAIR, KOTTOOLI AMSOM, PARAYANCHERI DESOM, KOZHIKODE. 2. AREDATH VINAYAKUMAR, S/O.A.J.MARY, KOTTOOLI AMSOM, PARAYANCHERI DESOM, KOZHIKODE. 3. AREDATH PRAMODKUMAR, A.J.MARY, KOTTOOLI AMSOM, PARAYANCHERI DESOM, KOZHIKODE. 4. PUTHIYEDATH MALLIKA AMMA, W/O.RAJAN NAIR, AREDATH VEEDE, KOTTOOLI AMSOM, PARAYANCHERI DESOM, KOZHIKODE. 5. PUTHIYAVEETTIL HARIDASAN, AREDATH VEEDE, KOTTOOLI AMSOM, PARAYANCHERI DESOM, KOZHIKODE. ADV. SRI.V.RAMKUMAR NAMBIAR FOR R1-3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC No.5137/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. COPY OF THE PLAINT DT. 9.11.2007 EXT.P2. COPY OF THE ORDER DT. 1.2.2010 PA TO JUDGE /TRUE COPY/ P.BHAVADASAN, J. ------------------------- W.P (C) No.5137 of 2010 -------------------------- Dated this the 30th March, 2010 J U D G M E N T In this writ petition, Ext.P2 order, whereby, the plaintiff has been directed to pay court fees under Section 37(1) of the Kerala Court Fees and Suit Valuation Act is challenged. 2. The suit was one for partition. Petitioner is the plaintiff in O.S No.412/2007 before the II Additional Sub Court, Kozhikode and on the basis of the allegation that she was in joint possession with defendants as co-owners, court fee was paid under Section 37(2) of the Kerala Court Fess and Suit Valuation Act. 3. When the defendants entered appearance in the suit, they pointed out that there was no averment in the plaint that plaintiff is in joint possession of the property. Under such circumstances, the court fee had to be paid under Section 37 (1) of the Act. The court below seems to have accepted the plea of the defendants and passed the impugned order. W.P (C) No.5137 of 2010 2 4. Learned counsel appearing for the petitioner drew the attention of this Court to the averments in the plaint and pointed out that there is a specific averment that the defendants were holding the property for and on behalf of all the co-owners and that implies plaintiff is also in joint possession. Accordingly it is contended that the court below was not justified in passing the impugned order. 5. Learned counsel appearing for the respondents pointed out that the plea referred is not sufficient and there should be a specific plea that the plaintiff is in joint possession. 6. Learned counsel appearing for the petitioner seems to be right. The averment in the plaint that defendants are in possession on behalf of all the co-owners which included the plaintiff also. Nowhere in the plaint, it is conceded that plaintiff is in out of possession. Apart from the above fact, the Court needs to look into the averment in the plaint only while considering payment of court fee. Moreover the defendant has no say in matter regarding payment of court fee except when the issue of W.P (C) No.5137 of 2010 3 jurisdiction is involved. 7. Whatever that be, there is no merit in the contention taken by the defendants that there was no averment of the joint possession in the plaint. 8. The court below has clearly erred in law in directing the plaintiff to pay the court fee under Section 37 (2) of the Kerala Court Fees and Suit Valuation Act. The court fee paid is adequate and sufficient. Petition is allowed and Ext.P2 is set aside. P.BHAVADASAN, JUDGE ma W.P (C) No.5137 of 2010 4 W.P (C) No.5137 of 2010 5