IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 18TH DECEMBER 2008 / 27TH AGRAHAYANA 1930 WP(C).No. 37553 of 2008(U) -------------------------- OS.560/2007 of ADDL.SUB COURT, IRINJALAKUDA .................... PETITIONER: --------------- ANTHONY S/O. KEREKATTU VAREED, MALA SNEHAGIRI DESOM, KURUVILASSERY VILLAGE, MUKUNDAPURAM. BY ADV. SRI.K.B.PRADEEP RESPONDENTS: ----------------------- 1. MRIDULA, D/O. AMBATTU VASU, POOPATHY DESOM, POYYA VILLAGE, KODUNGALLUR TALUK. 2. RADHAKRISHNAN, S/O.AMBATTU VASU, POOPATHY DESOM, POYYA VIILLAGE, KODUNGALLUR TALUK. 3. JOHNSON, S/O. KAREKATTU ANTHONY, MALA SNEHAGIRI DESOM, KURUVILASSERY VILLAGE, MUKUNDAPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P. BALACHANDRAN, J ------------------------------------------------------------ W.P(C) NO: 37553 OF 2008 U ----------------------------------------------------------- Dated this the 18th December,2008. JUDGMENT Heard counsel for the petitioner. 2. It is admitted by the counsel for the petitioner that if we are to go by the allegations in the plaint only, to determine as to how the suit for partition has to be valued and court fee paid, then it could be that Section 37(2) of the Court Fees Act alone is applicable. But according to him vide Ext.P2 common judgment in O.S.383/2001 and O.S.423/2001 on the file of the Sub Court, Irinjalakuda, prayer of the plaintiff in O.S.383/2001 to have recovery of the schedule property therein from the present petitioners was disallowed observing that the remedy of the respondent/plaintiff is to institute suit for partition and that O.S.423/2001 was decreed in favour of the present petitioner granting a decree of permanent prohibitory injunction against the respondents who are the plaintiffs in the present suit from evicting the petitioner who was the plaintiff therein and from causing obstruction to his peaceful residence in the plaint schedule item No:2 building which, according to the counsel for the petitioner is the building situated in the schedule property. That does not mean WPC 37553/2008 2 that the petitioner is in exclusive possession of the entire schedule property apart from his occupation in the building in the schedule property. Such matters appearing from evidence cannot be taken into consideration while determining the question as to whether the suit deserves to be valued under Section 37(1) or 37(2) of the Court Fees Act. In the instant case suit has been valued and court fee paid under Section 37(2) of the kerala Court Fees Act and as held by the court below the court fee so paid is correct. There is no merit in this writ petition and the writ petition is dismissed. K.P.BALACHANDRAN Judge jj WPC 37553/2008 3 K.K.DENESAN & V. RAMKUMAR, JJ. ---------------------------------------------------- M.F.A.NO: ----------------------------------------------------- JUDGMENT Dated: