IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 23RD NOVEMBER 2009 / 2ND AGRAHAYANA 1931 WP(C).No. 34530 of 2008(I) -------------------------- OS.354/2006 of ADDL.SUB COURT, IRINJALAKUDA .................... PETITIONER: --------------- SMT. PANKAJAKSHY, W/O. LATE KUMARAN, THARAYIL HOUSE, KATTOOR VILLAGE, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. MR.M.C.GOPI RESPONDENTS: --------------- 1. PRAHLADAN, S/O. KUMARAN, THARAYIL HOUSE, KATOOR.P.O, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. 2. SMT. ANITHA HARI, W/O. HARI BALAKRISHNAN, THANDAYAMPARAMBIL HOUSE, VALAPPAD VILLAGE, EDAMUTTOM.P.O, THRISSUR DISTRICT. 3. DAYANANDAN, S/O. THARAYIL KUMARAN, THARAYIL HOUSE, UDAYA NAGAR, AYYANTHOLE.P.O, THRISSUR DISTRICT. ADV. SRI.P.B.SAHASRANAMAN FOR R1 SRI.K.JAGADEESH FOR R1 SRI.T.S.HARIKUMAR FOR R1 SRI.M.UNNIKRISHNA MENON FOR R2 SRI.K.M.JAMALUDHEEN FOR R2 SMT.LATHA PRABHAKARAN FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 34530 of 2008(I) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: JUDGMENT DATED 7.10.2008 IN W.P.(C).NO.4 OF 2008 (A) OF THIS HONOURABLE COURT. EXT.P2: AMENDMENT APPLICATION DATED 21.01.2008 FILED BY THE PLAINTIFF IN O.S.NO.354 OF 2006 ON THE FILE OF THE SUB COURT, IRINJALAKUDA. EXT.P3: I.A.NO.3795 OF 2008/ IN O.S.NO.354 OF 2006 ON THE FILE OF THE SUB COURT, IRINJALAKUDA. EXT.P4: ORDER DATED 29.10.2008 IN I.A.NO.795 OF 2008 IN O.S.NO.354 OF 2006. RESPONDENTS' EXHIBITS: NIL .... // TRUE COPY // P.A TO JUDGE. S.S.SATHEESACHANDRAN, J. ----------------------------------- W.P.(C).No.34530 of 2008 - I --------------------------------- Dated this the 23rd day of November, 2009 J U D G M E N T Writ petition is filed seeking the following reliefs: “i) To issue a writ of certiorari or any other writ, order or direction after calling the records leading to Ext.P4 and quash the same. ii) To declare that the valuation and court fee paid by the plaintiff in O.S.No.354 of 2006 on the file of the Sub Court, Irinjalakkuda is not correct.” 2. Petitioner is the defendant in O.S.No.354 of 2006 on the file of the Sub Court, Irinjalakkuda. Suit is one for declaring a registered document as null and void and other consequential reliefs, and the respondents are the plaintiffs. Previously, after the trial commenced on the basis of some statement made by the plaintiffs, one among the plaintiffs was examined as a witness in the case. The defendant moved an application that sufficient court fee has not been paid and the valuation stated in the plaint is incorrect. The learned Sub Judge passed an order directing the plaintiffs to value the suit in accordance with law under Section 40 of the Court Fees Act with reference to the market value of W.P.(C).No.34530 of 2009 - O 2 the property. That order was challenged by the plaintiffs by way of a writ petition before this Court and it was disposed by Ext.P1 judgment dated 7.1.2008. This Court pointed out that any challenge as to the insufficiency of the court fee canvassed by the defendant has to be raised before the trial commenced and not later. It was also pointed out that as the decree sought in the suit is for treating the registered deed as null and void and not for setting aside the sale deed, the court below has to examine which provision of the Court Fees Act is applicable, whether Section 25(b) or Section 40 of the Act. After referring to Ext.P1 judgment learned Sub Judge considered the matter afresh in accordance with the directions given by this Court. Meanwhile, the plaintiffs also moved an application for making some corrections in the plaint, i.e., court fee has to be valued not under Section 40 of the Act, but, under Section 25(b) of the Act. That amendment application was also allowed. Learned Sub Judge thereafter passed Ext.P4 order holding that the valuation made and the court fee paid is sufficient negativing the challenge raised by the petitioner/defendant. Propriety and correctness of W.P.(C).No.34530 of 2009 - O 3 Ext.P4 order is challenged in this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. I heard the counsel on both sides. 4. Primarily, determination of court fee and payment thereof is a matter between the State and the plaintiffs. The defendant, at the most can only point out there is insufficiency in the payment of the court fee or it has been calculated under the wrong provision of the Court Fees Act. Of course, in a matter of valuation of a suit, the defendant has a valuable right since the valuation determine jurisdiction of the court. On the facts and circumstances presented in the case, it is evident that the challenge on the question of valuation and also insufficiency of court fee was canvassed after the case came up in the list for trial. It may be open to the court to examine that question at any time before pronouncement of the judgment. But, so far as the defendant is concerned such challenge cannot be canvassed after trial has commenced. This has been very clearly spelt out by a Division Bench in We Build Pvt. Ltd v. Kamaleswaran W.P.(C).No.34530 of 2009 - O 4 (1981 KLT 773) which had been adverted to earlier in Ext.P1 judgment as well. I do not find any impropriety or illegality in Ext.P4 order passed by the learned Sub Judge holding that there is no merit in the challenge as to the valuation and also sufficiency of the court fee paid in the suit. The learned Sub Judge is directed to complete the trial of the suit and dispose it, as expeditiously as possible. Writ petition is dismissed. S.S.SATHEESACHANDRAN, JUDGE. bkn/-