Janaki Amma and others v. Devaki Amma and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **TUESDAY,THE 08TH DAY OF JANUARY 2019 / 15TH AGRAHAYANA, 1940** ## **OP(C).No. 2659 of 2016** **[AGAINST THE REVISED JUDGMENT ON ISSUE NO.5 IN OS 203/2010 of SUB COURT, OTTAPPALAM DATED 07-10-2016]** ## **PETITIONERS:** **1 JANAKI AMMA AGED 75 YEARS, D/O KARTHIAYANI AMMA, RESIDING AT VATTEKATTIL HOUSE, PERINGODE DESOM, KOTHACHIRA AMSOM, OTTAPALAM TALUK. 2 GEETHA, AGED 48 YEARS, D/O JANAKI AMMA, RESIDING AT VATTEKATTIL HOUSE, PERINGODE DESOM, KATHACHIRA AMSOM, OTTAPALAM TALUK.** ***3 BALAN (DIED), AGED 64 YEARS, S/O RAMAN PANIKKAR, NEETIYATH HOUSE, KOTHACHIRA AMSOM AND DESOM, PERINGODE POST, OTTAPALAM TALUK.** **BY ADVS. SRI.R.SREEHARI SRI.SACHIN VYAS** ## **RESPONDENTS:** ****1 DEVAKI AMMA, (DIED) AGED 72 YEARS, D/O LATE LAKSHMIKUTTY AMMA, KIZHUPADATH, PALAPPURAM AMSOM AND DESOM, OTTAPALAM TALUK, PALAPPURAM POST 679 103.** |**2**|**KRISHNAN NAIR,**| |---|---| ||**AGED 68 YEARS,**| ||**S/O LATE LAKSHMIKUTTY AMMA, KIZHUPADATH,**| ||**THEKKUMANGALAM AMSOM AND DESOM,**| ||**LAKKIDI AMSOM AND POST, OTTAPALAM TALUK 679 301.**| |**3**|**SAROJINI AMMA,**| ||**AGED 62 YEARS,**| ||**D/O LATE LAKSHMIKUTTY AMMA, KIZHUPADATH,**| ||**PALAPPURAM AMSOM AND DESOM AND POST,**| ||**OTTAPALAM TALUK 679 103.**| OP(C) NO.2659 OF 2016 :-2-: ***ADDL.R4 PADMAVATHY AMMA, AGED 55 YEARS, W/O.LATE BALAN, NEETIYATH HOUSE, KOTHACHIRA AMSOM AND DESOM, PERINGODE POST, OTTAPPALAM TALUK, PIN- 679 535.** **ADDL.R5 BABURAJ, AGED 35 YEARS, S/O.LATE BALAN, NEETIYATH HOUSE, KOTHACHIRA AMSOM AND DESOM, PERINGODE POST, OTTAPPALAM TALUK, PIN- 679 535. ADDL.R6 BHAGYARAJ @ UNNIKRISHNAN, AGED 30 YEARS, S/O.LATE BALAN, NEETIYATH HOUSE, KOTHACHIRA AMSOM AND DESOM, PERINGODE POST, OTTAPPALAM TALUK,PIN- 679 535. *ADDL.R4 TO R6 ARE IMPLEADED AS THE LEGAL HEIRS OF THE THIRD PETITIONER AS PER ORDER IN I.A.NO.60/2017 DTD.8.1.2019. ** ADDL.R7 SASIDHARAN, S/O. LATE DEVAKI AMMA, AGED 57 YEARS ADDL.R8 SATHYANARAYANAN, S/O.LATE DEVAKI AMMA, AGED 52 YEARS ADDL.R9 VIJAYALAKSHMI,D/O.LATE DEVAKI AMMA, AGED 50 YEARS ADDL.R10 GEETHA, D/O.LATE DEVAKI AMMA, AGED 48 YEARS ADDL.R11 SURESH,S/O.LATE DEVAKI AMMA, AGED 43 YEARS** **ALL ARE RESIDING AT ELATTUVALAPPIL, PALAPPURAM POST,OTTAPPALAM TALUK, PIN: 679 103. **ADDL.RESPONDENTS 7 TO 11 ARE IMPLEADED AS THE LEGAL HEIRS OF THE FIRST RESPONDENT LATE DEVAKI AMMA AS PER ORDER IN IA NO.918/2017 DTD.8.1.2019.** **BY ADVS. R2 BY ADV.SRI.ARUN MATHEW VADAKKAN R3 & ADDL.R7 TP R11 BY ADV.SRI.K.P.SUDHEER R2 BY ADV. SRI.SANTHEEP ANKARATH** **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 06.12.2018,** **THE COURT ON 08.01.2019 PASSED THE FOLLOWING:** ## **N.ANIL KUMAR, J. ---------------------------------O.P.(C)No. 2659 of 2016 ---------------------------------Dated this the 8[th] day of January,2019** ## **JUDGMENT** This Original Petition is filed seeking the following prayer:- - “ _(a) Call for the records leading to passing of Ext.P9 Revised Judgment on Issue No.5 in O.S.No.203/2010 on the file of the Subordinate Judge's Court, Ottappalam dated 7.10.2016 and to set aside the same;”_ 2. Ext.P9 revised judgment on issue No.5 dated 7.10.2016 in O.S.No.203/2010 on the file of the Sub Court, Ottappalam is under challenge in this Original Petition. The parties to this proceedings will hereinafter be referred to as 'plaintiffs' and 'defendants' in accordance with their status, in the Original Suit. 3. The petitioners are defendants 1 and 2 and suppl. defendant No.3 in O.S.No.203/2010 of Sub Court, Ottappalam and the respondents are the plaintiffs therein. The suit is for recovery of possession on the O.P(C) No.2659 of 2016 **==> picture [18 x 8] intentionally omitted <==** strength of the title. The plaint schedule properties are three items; first item is having an extent of 40 cents, second item is having an extent of 18 cents and third item is having an extent of 1 acre and 20 cents. For the purpose of court fee, the plaintiffs valued the property at `1,10,000/-. 4. The defendants filed written statement contending that the plaint schedule properties are not properly valued and the court fee paid is not correct. Based on the pleadings, the Issue No.5 regarding the valuation of the suit and the payment of court fee was considered by the court below as a preliminary issue. By order dated 20.12.2011, the learned Sub Judge directed the plaintiffs to estimate the value of the plaint schedule properties at not less than the market value fixed by the District Collector. 5. Initially, the aforesaid order was under challenge in O.P.(C) No.350/2012 before this Court. At the O.P(C) No.2659 of 2016 ..5.. admission stage itself, the Original Petition was disposed of setting aside the order of the court below, holding that the court below is at liberty to issue a commission to assess the market value of the property for the purpose of payment of court fee. The commission so appointed thereafter, filed a report assessing the total market value of the property at `90,05,000/-. 6. After having heard both sides, the court below as per Ext.P9, fixed the value of the property as shown in the plaint at `1,10,000/- per cent totally ignoring the commission report filed in this case. 7. Learned counsel for the petitioners/defendants submitted that as per Section 30 of the Kerala Court-Fees and Suits Valuation Act, 1959, (hereinafter referred to as 'the Act') in a suit for possession of immovable property not otherwise provided for, fee shall be computed, on the market value of the property or on Rupees One Thousand whichever is higher. It is contended that in terms of O.P(C) No.2659 of 2016 ..6.. Section 7(3A) of the Act, the market value of any property other than agricultural land and building falling under sub-sections(2) and (3) shall be the value it will fetch on the date of institution of the suit. It is further contended that the finding of the court below that the commissioner's evidence cannot be relied upon is factually incorrect and further, the commissioner's evidence would indicate that item Nos.1 and 2 of the plaint schedule properties are having right of access and situated in a very important locality in the area. The court below is of the view that unless the valuation made in the plaint is ridiculous or arbitrary or unreasonable, the court would ordinarily rely on such valuation and entertain the suit if the suit was within its pecuniary limit on the basis of such valuation. The court below also relied on the decisions reported in **Coal India Limited** v. **Apeejay House Private Ltd.** [2013 KHC 2441], **Thankamma** v. **Unniamma Antharjanam** [1964 KHC O.P(C) No.2659 of 2016 **==> picture [17 x 8] intentionally omitted <==** 143] and **P.N.Sekhara Menon** v. **Ismail Sait Ummar Sait and others** [1968 KHC 104] and held that for the purpose of court fee, the averments in the plaint will have to be prima facie accepted as it is not ridiculous or arbitrary or unreasonable. 8. Admittedly, there are three items of property. As per the report of the commissioner, the value per cent of the first item of the plaint schedule property is `1,30,000/-, second item of the plaint schedule property is `1,10,000/- and third item of the plaint schedule property is `6,000/- per cent. The valuation made by the commissioner is projected to demand a valuation of the properties on the basis of the report of the Commissioner. 9. In Ext.P4 judgment of this Court, this Court set aside the order of the court below directing the plaintiff to estimate the market value at not less than the minimum value of such land fixed by the District Collector under Section 28A of the Kerala Stamp Act, 1959 and O.P(C) No.2659 of 2016 **==> picture [18 x 8] intentionally omitted <==** remitted the matter to the court below for fresh consideration, with liberty to issue a Commission to assess the market value of the property for the purpose of payment of court fee. 10. The plaintiffs challenged the order of the court below before this Court. Merely because the commissioner was taken and a commission report was filed, the court below was not obliged to accept the commission report as such. The court below had taken into account the commission report as well as the valuation made by the plaintiffs for the purpose of payment of court fee. The court below is of the view that the valuation made by the plaintiffs is reasonable and such valuation can be accepted for the purpose of payment of court fee. In **Sri.Rathnavarmaraja** v. **Smt.Vimla** [AIR 1961 SC 1299], the Apex Court held in paragraph 2 as follows:- O.P(C) No.2659 of 2016 ..9.. _“(2)The Court-Fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. By recognising that the defendant was entitled to contest the valuation of the properties in dispute as if it were a matter in issue between him and the plaintiff and by entertaining petitions preferred by the defendant to the High Court in exercise of its revisional jurisdiction against the order adjudging court-fee payable on the plaint, all progress in the suit for the trial of the dispute on the merits has been effectively frustrated for nearly five years. We fail to appreciate what grievance the defendant can make by seeking to invoke the revisional jurisdiction of the High Court on the question whether the plaintiff has paid adequate court-fee on his plaint. Whether proper court-fee is paid on a plaint is primarily a question between the plaintiff and the State. How by an order relating to the adequacy of the court-fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate. Again, the jurisdiction in revision exercised by the High Court under S.115 of the Code of Civil Procedure is strictly conditioned by cls.(a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the Subordinate Court or assumption of jurisdiction which the court does not possess or on the ground that the court has acted illegally or with material irregularity in the exercise of its jurisdiction. The defendant who may believe and even honestly that proper court-fee has not been paid by the plaintiff has still no right to move the superior courts by appeal or in revision against the order adjudging payment of court-fee payable on the plaint................”_ 11. Judged by the above standards, it can be safely concluded that whether the court fee is paid on the plaintiffs is primarily a question between the plaintiffs O.P(C) No.2659 of 2016 **==> picture [22 x 6] intentionally omitted <==** and the State and the defendant, who may believe even honestly that proper court fee has not been paid by the plaintiffs, has still no right to move the superior courts against the order adjudging payment of court fee payable on the plaint. On going through the impugned order, this Court is satisfied that the valuation made by the plaintiffs in the plaint is reasonable and can be accepted. Resultantly, Ext.P9 impugned order is confirmed. The Original Petition is devoid of any merit and accordingly dismissed. Sd/- **N.ANIL KUMAR, JUDGE** MBS/ O.P(C) No.2659 of 2016 ..11.. ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXHIBIT P1 PHOTO COPY OF THE PLAINT IN O S NO 203/2010 OF SUB COURT, OTTAPALAM.** - **EXHIBIT P2 PHOTOCOPY OF THE WRITTEN STATEMENT FILED BY THE DEFENDANTS 1 AND 2 IN OS NO 203/2010 OF SUB COURT, OTTAPALAM.** **EXHIBIT P3 PHOTO COPY OF THE FINDINGS ON ISSUE NO 5 IN OS 203/2010 OF SUB COURT, OTTAPALAM DATED 20-12-2011** **EXHIBIT P4 PHOTOCOPY OF THE JUDGMENT IN OP(C) NO 350/2012 DATED 04-07-2012** - **EXHIBIT P5 PHOTO COPY OF THE ADVOCATE COMMISSIONER'S REPORT AND PLAN FILED IN OS 203/2010 OF SUB COURT, OTTAPALAM.** **EXHIBIT P6 PHOTO COPY OF THE DEPOSITION OF CW1 IN OS NO 203/2010 OF SUB COURT, OTTAPALAM.** **EXHIBIT P7 PHOTO COPY OF THE DOCUMENT NO 1576/2010 OF SRO TRITHALA.** **EXHIBIT P8 PHOTOCOPY OF THE DOCUMENT NO 3034/2010 OF SRO TRITHALA.** **EXHIBIT P9 PHOTOCOPY OF REVISED JUDGMENT ON ISSUE NO 5 IN OS 203/2010 OF SUB COURT, OTTAPALAM DATED 07-10-2016**