Jayagovindhan v. Star Syndicate Babas Complex and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 11[TH] DAY OF NOVEMBER 2021 / 20TH KARTHIKA,** **1943** **OP(C) NO. 1973 OF 2021** **AGAINST THE ORDER DATED 16.09.2021 IN OS 2291/2012 OF** **PRINCIPAL SUB COURT, THRISSUR** ## **PETITIONER/PLAINTIFF** JAYAGOVINDHAN, AGED 68 YEARS S/O VADAKKOOT NELLIPARAMBIL KRISHNAEZHUTHASSAN, AVANISSERY VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT. BY ADVS. SHINOJ.K.N C.K.RAPHEEQUE K.B.NIDHINKUMAR ## **RESPONDENTS/DEFENDANTS** 1 STAR SYNDICATE BABAS COMPLEX, ERANELLOOR VILLAGE, KECHERI DESOM, THALAPPILLY THALUK, REPRESENTED BY MANAGING PARTNER, P.M.JOHNSON, AGED 55 YEARS, S/O PULIKOTTIL MANI, KUNNAMKULAM VILLAGE, TALAPPILLY TALUK, THRISSUR DISTRICT-680503. 2 K T MINI, AGED 50 YEARS D/O THAVU KUTHOOR, DOOR NO.41,42, TAPPUKULAM, COIMBATORE DISTRICT, TAMILNADU STATE-641001. 3 JIMSON, S/O PULIKOTTIL MANI, KINNAMKULAM VILLAGE, PADINJAREANGADI DESOM, THALAPILLY TALUK, THRISSUR DISTRICT-680582. 4 SHALU VALLAPIL S/O VARGHESE VALAPPIL, VALAPPIL HOUSE, MANNUTHY DESOM, OLLUKKARA VILLAGE, THRISSUR TALUK, THRISSUR DISTRICT-680655. O.P(C).No.1973/2021 2 5 DINESAN, S/O ARAKKAL KESAVAN, ARAKKAL HOUSE, PALISERRY VILLAGE AND DESOM, THRISSUR DISTRICT680027. 6 P.P.TONY S/O PEREPADAN POULOSE, PEREPADAN HOUSE, PULLAZHY VILLAGE AND DESOM, THRISSUR DISRICT, PIN-680012. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 02.11.2021, THE COURT ON 11.11.2021 DELIVERED THE FOLLOWING: ## _**A. BADHARUDEEN, J.**_ ================================ _O.P(C).No.1973 of 2021_ ================================ _Dated this the 11[th] day of November, 2021_ ## _**JUDGMENT**_ The petitioner, who is the plaintiff in O.S.No.2291/2012 on the file of the Principal Sub Judge, Thrissur, has preferred this Original Petition challenging Ext.P1 order, whereby the learned Sub Judge appointed a Commissioner to determine the actual market value of the property in view of the mandate under Section 7(3A) of the Kerala Court Fees & Suits Valuation Act, 1959 (hereinafter `Act' for short). 2. According to the petitioner, the suit property is an agricultural land and therefore, the suit valued under Section 7(2) of the Act by taking 10 times of annual gross profit of the suit property for payment of court fee under Section 25(b) of the Act is perfectly in order. Therefore, the court below went wrong in appointing an Advocate Commissioner to make local and other investigation as may be necessary to file a report under Section 19 O.P(C).No.1973/2021 4 of the Act after determining the actual market value of the land under Section 7(3A) of the Kerala Court Fees & Suits Valuation Act. 3. It is submitted by the learned counsel for the petitioner further that though in an earlier writ petition – W.P(C).No.38368/2003, by judgment dated 06.10.2005, this Court confirmed the market value of the same property at Rs.45,000/- per cent for the purpose of valuation and payment of court fee, the learned counsel for the petitioner attempted to distinguish the nature of property as agricultural land in this matter. 4. Having noticed the nature of the contention raised, notice to the respondents is dispensed with. In para.2 of the synopsis of the petition the petitioner raised contentions to the effect that _there is no dispute regarding the nature of the property in dispute; but the court below wrongly considered the issue in hand and directed to pay the potential value of the land. The property being an agricultural land is only liable to pay court_ O.P(C).No.1973/2021 5 _fees determined under section 7(2) of the Court Fees Act and not under S.7(3A) and the order of the court below is liable only to be set aside_ . Thus it is an admitted fact that the plaint schedule property in O.S.No.521/1997 and the plaint schedule property in the present suit are one and the same. 5. I have perused copy of judgment in W.P(c).No.38368/2003 dated 06.10.2005. In this Writ Petition, O.S.No.521/1997 filed by the petitioner herein as plaintiff was the subject matter. In that case, the defendant raised a contention that the suit was not properly valued and as per order dated 20.11.2003, the learned Sub Judge fixed the market value of the property at Rs.97,65,000/-. The matter was taken before this Court. This Court considered the matter in detail with reference to C.R.P.No.1069 of 2002 filed earlier and categorically held that the market value fixed as per Ext.P4 therein based on the commission report as Rs.45,000/- per cent was correct. 6. Though the learned counsel for the petitioner submitted that the prayer in the present suit – O.S.No.2291/2012 O.P(C).No.1973/2021 6 is different from the prayer in O.S.No.521/1997, it could be gathered that the present suit has been filed for declaring sale deed Nos.2498/2010 and 2501/2010 of S.R.O, Cherppu as null and void. In W.P(C).No.38368/2003 in para.3, this Court observed the nature of suit, viz., O.S.No.521/1997, as one for cancellation of document No.6592/95 on the file of the Sub Registry Office, Thrissur. Referring the nature of the prayers in both suits, no subtle difference could be seen as the prayers are declaration to be valued under Section 25 of the Act. 7. The pertinent question herein is, whether in view the finality of the verdict in W.P(C).No.38368/2003 fixing the market value of the property at Rs.45,000/- per cent based on the commission report filed during 2003 the petitioner herein can dispute the said finding in a subsequent suit by categorising the property as agricultural land without raising such a contention in the present suit. I do not think that the petitioner, who is the plaintiff in O.S.No.521/1997 and the plaintiff in the present suit – O.S.No. 2291/2012 could change the nature of property as one of O.P(C).No.1973/2021 7 agricultural land without raising such a contention in the earlier suit and writ petition as he has been estopped from raising such a contention since the verdict in W.P(C).No.38368/2003 was in no way challenged and thus became final. If so, it has to be held that the property in the present suit is to be valued on the basis of the market value prevailing as done in O.S.No.521/1997. Accordingly, the court below deputed the Commissioner to assess the value. 8. Section 19 of the Kerala Court Fees & Suits Valuation Act, 1959 provides for _Inquiry and Commission and the said provision stipulates that for the purpose of deciding whether the subject matter of a suit or other proceeding has been properly valued or whether the fee paid is sufficient, the Court may hold such inquiry as it considers proper and may, if it thinks_ _fit, issue a commission to any proper person directing him to make such local or other investigation as may be necessary and to report thereon to the Court and the Court may pass appropriate orders as to costs._ O.P(C).No.1973/2021 8 9. A Full Bench of this Court had occasion to consider the scope of Section 19 and it was held that _jurisdiction is a matter for conferment by the Legislature; and in enacting the Kerala Court Fees and Suits Valuation Act, the Legislature has conferred express jurisdiction on the Court in which any suit is filed to issue a commission to make local inspection and value the property and also to fix the costs of such commission. Nothing in the Code of Civil Procedure appears to be violated by the conferment of such a jurisdiction by the Court fees and Suits Valuation Act. The word `Court' in S.19 can mean only the Court in which the plaint is filed and which therefore is called upon to enter an enquiry on the value of the property involved therein._ _**Ammad v. Narayanan Nambiar** – 1971 KHC 11: 1971 KLT 61 :_ . _1971 KLJ 123 : 1971 KLR 53 (FB)_ 10. Therefore, it has to be held that the petitioner/plaintiff herein is liable to pay court fee based on the actual market value of the property to be determined under Section 7(3A) of the Act and therefore, Ext.P1 order impugned herein for the said purpose O.P(C).No.1973/2021 9 is not liable to be interfered in any manner. In view of the matter, this Original Petition fails and is accordingly dismissed, confirming Ext.P1 order. The interim order granted by this Court as per order dated 02.11.2021 stands vacated. Since the Original Suit is of the year 2012, the trial court is directed to dispose of the same at the earliest at any rate within four months from the date of production or receipt of a copy of this judgment. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_ O.P(C).No.1973/2021 10 ## **APPENDIX OF OP(C) 1973/2021** PETITIONER'S EXHIBITS Exhibit P1 Exhibit P1 THE TRUE COPY OF THE ORDER IN OS NO.2291/2012 DATED 16.09.2021 OF PRINCIPAL SUB COURT THRISSUR. Exhibit P2 THE TRUE COPY OF THE PLAIN IN O.S.NO.2291/2012 DATED 14.12.2012 OF PRINCIPAL SUB COURT THRISSUR. Exhibit P3 THE TRUE COPY OF WRITTEN STATEMENT DATED 19.01.2016 FILED BY THE 6TH DEFENDANT IN O.S NO.2291/2012 BEFORE THE PRINCIPAL SUB COURT THRISSUR. Exhibit P4 TRUE COPY OF THE COMMISSION REPORT DATED 15.10.210 SUBMITTED BY ADVOCATE COMMISSIONER IN C.M.A. 92/2010.