IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN WEDNESDAY, THE 20TH JANUARY 2010 / 30TH POUSHA 1931 WP(C).No. 35205 of 2009(O) -------------------------- OS.255/2008 of MUNSIFF COURT, CHANGANACHERRY .................... PETITIONER(S): --------------- LAIJU MOL, D/O.M.H.KASSIM KANNU RAWTHER, MUTHALUPARAMBIL HOUSE, THRIKKODITHANAM KARA, THRIKKODITHANAM KARA VILLAGE, REPRESENTED BY M.H.HANEEFA RAWTHER, OSALAPARAMBIL HOUSE, MANIKANDA VAYAL, THRIKKODITHANAM KARA, THRIKKODITHANAM KARA VILLAGE,KOTTAYAM DISTRICT. BY ADV. SRI.JIJO PAUL RESPONDENT(S): --------------- 1. HAREES MON, S/O.M.H.KASSIM KANNU RAWTHER, MUTHALUPARAMBIL HOUSE, THRIKKODITHANAM KARA, THRIKKODITHANAM KARA VILLAGE KOTTAYAM DISTRICT. 2. UBAISE, S/O.M.H.KASSIM KANNU RAWTHER, MUTHALUPARAMBIL HOUSE, THRIKKODITHANAM KARA, THRIKKODITHANAM KARA VILLAGE, KOTTAYAM DISTRICT. 3. MUHAMMED RAFFI, S/O.M.H.KASSIM KANNU RAWTHER, MUTHALUPARAMBIL HOUSE, PUZHAVATHU KARA, CHANGANACHERRY VILLAGE. 4. THAJUMON K.,S/O.M.H.KASSIM KANNU RAWTHER MUTHALUPARAMBIL HOUSE, NALKAVALA BHAGOM, THRIKKODITHANAM KARA VILLAGE, KOTTAYAM DISTRICT. 5. BAIJUMON K., S/O.M.H.KASSIM KANNU RAWTHER, THANSI MANZILIL, THAMARAKULAM P.O., CHARUMMOOD VILLAGE, MAVELIKKARA TALUK, ALAPPUZHA DISTRICT. 6. NAJEERA SALIM, W/O.SALIM, KIZHAKEVELIYIL HOUSE, KALATHU WARD, AVALOOKUNNU P.O., ARYAD SOUTH, ALAPPUZHA VILLAGE, ALAPPUZHA DISTRICT. WPC.35205/09 7. SABOORA NAZAR, W/O.NAZAR, VADAKOTHIL HOUSE, MUNDIYERUMA BHAGOM, KALLAR P.O., KALKOONTHAL VILLAGE, UDUMPANCHOLA TALUK, IDUKKI DISTRICT. 8. MUNEERA ISMAIL, W/O.ISMAIL, KOTHARAPARAYIL HOUSE, PALLICKACHIRA P.O., PAIPADU KARA, CHANGANACHERRY TALUK. 9. SUNITHA ANZAR, W/O.ANZAR, PAPPANAMCHIRAYIL HOUSE, ATHIRAMPUZHA VILLAGE, ATHIRAMPUZHA P.O., KOTTAYAM DISTRICT. 10. K.THAHAMON, S/O.KASIM KANNUR RAWTHER, THACHANKERY HOUSE, FROM KOCHERIPARAMPU HOUSE, PERUNNAI EAST KARA, CHANGANACHERRY VILLAGE. ADV. SRI.GRASHIOUS KURIAKOSE FOR R1, 2 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.S.SATHEESACHANDRAN, J. ------------------------------- W.P.(C).NO.35205 OF 2009 () ----------------------------------- Dated this the 20th day of January, 2010 J U D G M E N T The writ petition is filed seeking mainly the following reliefs: i. to call for the originals of the records leading up to Ext.P3. ii. to issue a writ of certiorari or any other writ, order or direction setting aside and quashing the originals of Ext.P3. iii. to declare that the court fee paid on Ext.P1 plaint is correct and proper. 2. Petitioner is the plaintiff in O.S.No.255 of 2008 on the file of the Munsiff Court, Changanasserry. Suit has been filed for setting aside two registered documents, partition and also injunction. Suit property was described as having an extent of 15 cents comprising a building. Showing the valuation of the WPC.35205/09 2 subject matter in the suit at Rs.1,000/-, court fee thereof was paid by the plaintiff under Section 25 (d) (ii) of the Kerala Court Fees and Suits Valuation Act. For the relief of decree of injunction canvassed, valuation was shown at Rs.500/- and court fee paid on such valuation under Section 27 (c) of the Kerala Court Fees and Suits Valuation Act. The contesting defendants, in their written statement, among other contentions, disputing the valuation and also the court fee paid, an issue thereof was raised, and it was heard by the court below preliminarily. Ext.P3 is the order passed on such issue by the court below whereunder petitioner/plaintiff was directed to amend the valuation made in the suit. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. Notice given, the 1st and 2nd respondents have entered appearance. I heard the counsel on both sides. The learned Munsiff taking note that the main relief canvassed in the suit is for a declaration for setting aside two registered documents, a release deed and another, a sale deed by her father, WPC.35205/09 3 accepted the contentions canvassed by the defendants that the suit has not been properly valued and ordered the petitioner/plaintiff to value the suit with reference to the value of the property and remit the court fee as contemplated under Section 40 of the Kerala Court Fees and Suits Valuation Act. The learned counsel for the petitioner/plaintiff relying on Sankaran v. Velukutty (1986 KHC 196) contended that even though there is a prayer for declaration that the settlement deed and sale deed are invalid and not binding on the plaintiff, she cannot be called upon to pay court fees for the value of the property as the suit is mainly for partition of the share of the plaintiff ignoring the two registered documents. At the most, the prayer for declaration as to the invalidity of the two registered sale deeds, according to the counsel, has to be treated as an incidental relief and not the main relief in the suit. Perusing Ext.P1 copy of the plaint in the suit and Ext.P3 order passed by the learned Munsiff, I find no merit in the arguments raised by the counsel relying on the decision referred to above. Ext.P1 suit is essentially one for partition for the share of the plaintiff declaring that two registered sale deeds, a release deed and a sale deed, are WPC.35205/09 4 void. However, the reliefs have been canvassed in the suit as if the main relief is for a declaration for setting aside the two sale deeds and the other for partition and injunction as supplementary reliefs consequential to the declaration applied for. It is in that way, valuation has been effected under Sections 25 (d) (ii) and 27 (c) of the Kerala Court Fees and Suits Valuation Act and court fee paid under such sections without making any reference or paying any court fee under Section 37 of the Kerala Court Fees and Suits Valuation Act for partition of the share of the plaintiff in the subject matter. In the nature of the reliefs canvassed in the suit, there is no impropriety or illegality in Ext.P3 order passed by the learned Munsiff directing the petitioner/plaintiff to value the suit under Section 40 of the Kerala Court Fees and Suits Valuation Act with reference to the value of the property. True, the court below has not taken note of the relief of partition claimed and no direction has been issued to the plaintiff with respect to the court fee payable for such relief on the basis of the valuation to be arrived at. The learned counsel for the plaintiff requested for carrying out suitable amendments in the plaint to canvass the main relief as one for partition WPC.35205/09 5 treating the release deed and also the sale deed as not binding on the plaintiff and to pay the court fee as per the relevant provisions under the Kerala Court Fees and Suits Valuation Act stating the valuation of the subject matter for claiming such relief. I do not want to express any opinion on the merit of the amendment of plaint canvassed by the plaintiff, which is yet to be presented in the suit before the court below. However, after going through the allegations raised in Ext.P1 plaint and also Ext.P3 order, I find an opportunity is to be extended to the plaintiff to move an amendment application to the plaint to have the main relief in the suit as one for partition of the share of the plaintiff in the suit property. I do not also wish to express any opinion whether in the allegations raised the petitioner/plaintiff can sustain the main relief without seeking a declaration for setting aside the registered release deed and sale deed. That, of course, is a matter to be considered in the suit if at all an amendment as proposed is moved and allowed by the court. In case, an amendment application is moved by the plaintiff within one month from the date of receipt/production of a copy of this judgment, the court below shall consider and dispose of that application on WPC.35205/09 6 its merit in accordance with law. If an application is moved by the plaintiff for amending the plaint within the time fixed as above, subject to the orders on such application, the court below shall consider the valuation of the suit and court fee payable afresh and pass appropriate order thereof, if need be. In the event of the default of the plaintiff in moving the amendment application within the time fixed, Ext.P3 order of the court below shall remain undisturbed, and the court below shall proceed with the suit and dispose it in accordance with law. Subject to the above directions/observations, the writ petition is disposed of. Handover a copy of the judgment to the counsel on both sides on usual terms and send a copy to the court concerned forthwith. S.S.SATHEESACHANDRAN JUDGE prp