Chacko Paulose and others v. Saramma Varghese

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** ## **TUESDAY, THE 7TH DAY OF JANUARY 2014/17TH POUSHA, 1935** ## **OP(C).No. 4693 of 2013 (O)** ## **------------------------------------IN OS 83/2012 OF THE SUB COURT, THIRUVALLA** ## **PETITIONER(S)/PETITIONERS-DEFENDANTS 1,3,4:** **------------------------------------------------------------------------------------** ## **1. CHACKO PAULOSE** - **S/O. PAULOSE CHACKO, EATTICKAL VEEDU KUNNAMTHANAM MURI, KUNNAMTHANAM VILLAGE MALLAPPALLY TALUK.** **2. KOSHY MATHEW S/O. CHACKO PAULOSE, EATTICKAL VEEDU KUNNAMTHANAM MURI, KUNNAMTHANAM VILLAGE MALLAPPALLY TALUK.** **3. KOSHY E.P.** - **S/O. CHACKO PAULOSE, EATTICKAL VEEDU KUNNAMTHANAM MURI, KUNNAMTHANAM VILLAGE MALLAPPALLY TALUK.** **BY ADVS.SRI.SATHISH NINAN SRI.SANTHOSH MATHEW SRI.ARUN THOMAS SRI.JENNIS STEPHEN** ## **RESPONDENT(S)/COUNTER PETITIONER/PLAINTIFF :** **----------------------------------------------------------------------------------------** **SARAMMA VARGHESE D/O. CHACKO, EATTICKAL VEEDU, KUNNAMTHANAM MURI KUNNAMTHANAM VILLAGE, MALLAPPALLY TALUK PRESENT ADDRESS: SARAMMA VARGHESE, RESIDING AT NO.10 SECOND MAIN, S.R.NAGAR, BANGALORE-560 027 REPRESENTED BY POWER OF ATTORNEY HOLDER MANOJ P.JOHN S/O. PERUMAL JOHN KALIYICKAL PADICKAL PUTHENVEETTIL GRACE BHAVAN ANGADICKAL SOUTH P.O., CHENGANNOOR VILLAGE.** ## **R BY SRI.V.PHILIP MATHEW** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 07-01-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP(C).No. 4693 of 2013 (O) -------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -------------------------------------** **EXT.P1 : COPY OF THE PLAINT IN OS NO.83/2012 OF THE SUB COURT, THIRUVALLA. EXT.P2 : COPY OF THE WRITTEN STATEMENT FILED BY DEFENDANTS 1,3 AND 4 IN OS NO.83/2012. EXT.P3 : COPY OF THE APPLICATION IA NO.1108/2013 IN OS NO.83/2012 FILED BY THE PETITIONERS. EXT.P4 : COPY OF THE OBJECTION FILED BY THE RESPONDENT IN IA NO.1108/2013 IN OS NO.83/2012. EXT.P5 : COPY OF THE APPLICATION - IA NO.1109/2013 IN OS NO.83/2012 FILED BY THE PETITIONERS. EXT.P6 : COPY OF THE OBJECTION FILED BY THE RESPONDENT IN IA NO.1109 OF 2013 IN OS NO.83/2012. EXT.P7 : COPY OF THE ORDER DTD.18.11.2013 IN IA NO.1108/2013 IN OS NO.83/2012 OF THE SUBORDINATE JUDGE'S COURT, THIRUVALLA. EXT.P8 : COPY OF THE ORDER DTD.18.11.2013 IN IA NO.1109 OF 2013 IN OS NO.83/2012 OF THE SUBORDINATE JUDGE'S COURT, THIRUVALLA.** **RESPONDENT(S)' EXHIBITS --------------------------------------NIL** //True copy // PA to Judge das ## **N.K.BALAKRISHNAN, J.** ========================== **O.P.(C). No. 4693 of 2013** =================================== **Dated this the 7[th] day of January, 2014** ## **JUDGMENT** Exts.P7 and P8 orders are under challenge. An application for amendment of the written statement was filed by the defendant. That petition was dismissed as per Ext.P7 order. The other petition was for issuance of commission and that petition was dismissed as per Ext.P8 order. 2. Ext.P3 is the petition for amendment. The learned Sub Judge dismissed the petition stating that the amendment is a very lengthy one. No acceptable reason was stated by the learned Sub Judge while dismissing the application for amendment. It is pointed out by the learned counsel for the petitioner that the amendment petition appeared to be lengthy because of the description of property. In fact the amendment is only to the effect that -: 2 :- ## O.P.(C).No.4693/2013 the property mentioned therein was not in the joint possession of the plaintiff and defendants. It was also stated that the defendants 2, 3 and 4 had constructed houses in the respective plots allotted to them and that they are residing in the said houses. The plinth area of the building and other aspects including the value of the building are mentioned in the proposed amendment. The other amendment is to the effect that without seeking declaration of title in respect of the suit property the plaintiff is not entitled to get a decree as sought for. 3. The suit was filed in the year 2012. There was no unreasonable or inordinate delay in filing the petition for amendment. This petition was not filed after the commencement of the trial. It is stated that the suit has been now put in the special list for trial. There is no case for the respondent that, by the amendment sought to be introduced, the petitioners wanted to introduce a plea so as to cause withdrawal of any admission. -: 3 :- O.P.(C).No.4693/2013 4. The learned counsel for the respondent/plaintiff opposes the petition contending that the suit was filed showing the value of the property as reflected in the title deeds produced along with the plaint. The learned counsel for the petitioners would submit that the question, whether the suit was properly valued or not is to be considered only when the issue regarding the same is framed based on the amended written statement, where the petitioners have specifically stated what is the value of each of the buildings. It is vehemently argued by the learned counsel for the respondent that the question regarding the court fee is actually a matter between the plaintiff and the State and so the defendants cannot raise a contention as stated in the proposed amendment. 5. The decisions in **Radhakrishna v.** **Ananthakrishnan (2007 (3) KLT 1009)** and **Cicily Mathew v. George (2013 (2) KLT 889)** are not applicable to the facts of this case. -: 4 :- O.P.(C).No.4693/2013 6. The Hon'ble Supreme Court in **Satheedevi v. Prasanna (2010 (2) KLT 642 (SC)** was rendered in a suit for cancellation of a document where it was held that the court fee is to be computed on the value of the property for which the document was executed and not on the market value. In the case on hand, the suit is not for cancellation of document but for partition of the property. The petitioners contend that without seeking a declaration of title the plaintiffs are not entitled to get a decree for partition since the petitioners are not co-owners. Anyway, that is a matter to be considered by the trial court if and when that question arises for consideration. 7. It was observed by the Hon'ble Supreme Court in **M.L.Sethi v. R.P.Kapur (AIR 1972 SC 2379)** that every defendant has “an immunity from a litigation unless the requisite court fee is paid by the plaintiff” and it is a valuable right available to him. Therefore, the contention that the defendants are not at all entitled to question the ## -: 5 :- O.P.(C).No.4693/2013 valuation of the suit property cannot be correct. The aforesaid decision was followed by a Division Bench of this court in **P.P.S. Pillai v. Catholic Syrian Bank (2000 (3) KLT 629)** . It was held by the Hon'ble Supreme Court in **Sushil Kumar Jain v. Manoj Kumar and Another (AIR 2009 SC 2544)** that in the case of an amendment of a written statement, the courts will be more liberal in allowing than that of a plaint, as the question of prejudice would be far less in the former than in the latter and addition of a new ground of defence or substituting or altering a defence or taking inconsistent pleas in the written statement can also be allowed. Relying on the decision of the Hon'ble Supreme Court in **Sampath Kumar v. Ayyakannu (2002 (7) SCC 559)** it was held in **Rajesh Kumar Aggarwal and others v. K.K. Modi and others (2006(4) SCC 385)** that it is settled law that the merits of the amendment sought to be incorporated by way of amendment are not to be adjudged at the stage of allowing -: 6 :- O.P.(C).No.4693/2013 prayer for amendment. 8. In the light of what is stated above, I hold that Ext.P7 order is liable to be interfered with and it is to be allowed. 9. The other application is for issuance of commission. It is submitted by the learned counsel for the respondent that a report was filed earlier and so another report is not required. It is submitted by the learned counsel for the petitioners that earlier report was an exparte one. No valuation was made by the commissioner in that report. The request made in this petition is only to issue commission for the valuation of the buildings. Whether the valuation is to be accepted or whether it will have any impact on the suit, are matters to be considered later. No prejudice will be caused to the respondents if, the very same Advocate Commissioner is directed (if available) to conduct inspection and to submit the valuation of the buildings with the help of an Engineer, for which the -: 7 :- ## O.P.(C).No.4693/2013 petitioners have to bear expenses. 10. In the result, this OP is allowed. Exts.P7 and P8 orders are set aside. The amendment petition is allowed. The trial court will issue commission for the purpose as stated in the application. Commission bata to be fixed by the trial court. ## Sd/- **N.K.BALAKRISHNAN, JUDGE** das // True copy // PA to Judge