K.R. Reez and Anitha Reez v. Alex Peter

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ## `THE HONOURABLE MR.JUSTICE C.S.DIAS` ``` WEDNESDAY, THE 26[TH] DAY OF OCTOBER 2022 / 4TH KARTHIKA, 1944 ``` ## `OP(C) NO. 998 OF 2016` ``` IN OS 1046/2012 OF I ADDITIONAL SUB COURT,ERNAKULAM ``` ``` PETITIONERS: ``` ``` 1K.R.REEZ, AGED 52 YEARS, S/O.K.K.RAGHAVAN,AGED 52 YEARS,VIII/374, EROOR DESOM,KANAYANNUR TALUK, PIN 682 306. 2ANITHA REEZ, W/O.K.R.REEZ,AGED 44 YEARS, VIII/374,EROOR DESOM,KANAYANNUR TALUK, PIN 682 306. BY ADVS.SRI.A.BALAGOPALAN SRI.M.S.IMTHIYAZ AHAMMED SRI.M.N.MANMADAN SRI.A.RAJAGOPALAN ``` ``` RESPONDENT: ``` ``` ALEX PETER S/O.P.K.PETER, AGED 53 YEARS,RESIDING AT PLACKIYIL HOUSE, IRUMPANAM, THRIPUNITHURA,ERNAKULAM 682 031. ``` ``` BY ADV SRI.G.SREEKUMAR (CHELUR) ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 26.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(C)No.998/2016 ``` ``` -:2:- ``` Dated this the 26[th] day of October,2022 ## **J U D G M E N T** Aggrieved by Ext.P4 order dated 09.11.2015 passed by the Court of the Additional Subordinate Judge-I, Ernakulam, in I.A.No.4324/2015 in O.S.No.1046/2012, the defendants in the suit have filed the original petition. The respondent is the plaintiff in the suit. 2. The antecedent facts, relevant for the determination of the original petition, are: the respondent has filed the suit against the petitioners, to dissolve a firm named ‘SOLAR MARINE SOURCES’ and for allotting one-half share in plaint ‘A’ and ‘B’ schedule properties. The petitioners have resisted the suit by filing Ext.P2 written statement. They have categorically averred in Ext.P2 that, the valuation portion in the suit is incorrect and the respondent has ``` O.P.(C)No.998/2016 ``` ``` -:3:- ``` not given the estimated value of his share. As regards relief No.(b), the petitioners are the absolute owners in exclusive possession and enjoyment of plaint ‘A’ and ‘B’ schedule properties. The present value of the plaint schedule properties is more than Rs.5,00,000/- per cent. Therefore, a suit for a decree of dissolution of the firm is insufficient to consider relief No.(b). The plaintiff has to pay the court fee on the basis of the market value of the plaint schedule properties. Furthermore, the second petitioner is an unnecessary party and, therefore, the suit is bad for misjoinder of parties. Even though the petitioners filed I.A.No.4324/2015(Ext.P3), to raise an additional issue regarding the valuation of the suit, the court below has passed the impugned Ext.P4 order, holding that the valuation of the plaint is correct. Ext.P4 is erroneous and wrong. Hence, the original petition. ``` O.P.(C)No.998/2016 ``` ``` -:4:- ``` 3. Heard; Sri. M.N.Manmadan,the learned counsel appearing for the petitioners and Sri. G.Sreekumar (Chelur), the learned counsel appearing for the respondent. 4. Sri. M.N.Manmadan argued that the court below has gone wrong in passing Ext.P4 order and holding that the valuation is correct because plaint ‘A’ and ‘B’ schedule properties stand in the individual names of the petitioners and are not the properties of the firm. Likewise, the second petitioner is not even a partner of the firm. Therefore, if the respondent wants a decree with respect to the plaint ‘A’ and ‘B’ schedule properties, necessarily, they should seek a declaration to the said effect and pay court fee as contemplated under Section 25 of the Kerala Court Fees and Suit Valuation Act,1959(in short, ‘Act’) . Only if an issue is framed in this regard, can the said issue be considered. ``` O.P.(C)No.998/2016 ``` ``` -:5:- ``` Moreover, the respondent has not filed any estimate as envisaged under Section 10 of the Act. The court below has, by a cryptic order, rejected Ext.P3 application, which warrants to be interfered by this Court under Article 227 of the Constitution of India. 5. Sri. G.Sreekumar (Chelur), countered the above submission by arguing that the averments in paragraph Nos.3 and 4 of the plaint are quite unambiguous. The respondent has specifically averred that the plaint ‘A’ and ‘B’ schedule properties were purchased with the funds of the firm. Under Section 36 of the Act, the court fee need to be computed only on the value of the plaintiff’s share in the partnership firm. If the court below finds that the value of the plaintiff’s share exceeds the value of the suit, no final decree can be passed. It is also settled, that only the assertions in the plaint can be looked into for the ``` O.P.(C)No.998/2016 ``` ``` -:6:- ``` purpose of deciding the valuation of the plaint. He contended that there is no error in Ext.P4 order warranting interference by this Court. 6. The point is whether there is any error or illegality in Ext.P4 order?. 7. The respondent has filed Ext.P1 plaint seeking the following reliefs: - “(a) Pass a decree dissolving the partnership firm namely SOLAR MARINE SOURCES' run by the plaintiff and the 1" defendant. - (b) Pass a decree allotting the plaintiff one half share in the plaint A and B schedule properties. - (c) Appoint an advocate commissioner with the assistance of an Taluk Surveyor to measure out the plaint A and B schedule properties, prepare a sketch, demarcate the plaintiff's share in the plaint A and B schedule properties and thereafter give the plaintiff exclusive possession in the allotted property by due process of law.” 8. The valuation portion of the plaint for the purpose of court fee is as follows: ``` O.P.(C)No.998/2016 ``` ``` -:7:- ``` ## VALUATION |Valuation u/s. 36 of Kerala C.F.&S.V.|:|Rs.2,50,000/-| |---|---|---| |Act for relief A and B||| |Total Court fee payable|:|Rs.23,400/-| |1/10 court fee paid|:|Rs.2340/-| ## 9. The respondent/plaintiff’s case in paragraph ## Nos.3 & 4 of the plaint reads thus: “3. The plaintiff submits that the business of the firm was in huge loss. No business activity of the partnership was being done for the last 2 to 3 years and the partners have given up the business. But share of assets of the firm, that is the immovable properties of the firm lying in Thiruvankulam village, were not settled. The plaintiff believes that it is better to give an end to the partnership business as no business activity is being carried on. In addition to that several disputes and indifferences have arisen between the plaintiff and 1st defendant as such partners whereby it has become impossible to carry on the business in partnership with advantage to the partners. The plaintiff submits that the partnership firm has capital assets of immovable properties. The immovable properties of partnership firm are situated at Thiruvankulam Desom in Thiruvankulam Village. The details of the aforesaid properties are given in the schedule given below. The plaintiff believes it would be better to settle those matters also by separating the shares in the said property. 4. As submitted in the above paragraph, the partnership firm has purchased immovable properties by virtue of two sale deeds. The property obtained by virtue of sale deed no.4076/2006 of SRO Tripunithura is more particularly described as 'plaint schedule' property A and Sale deed no.4075/2006 of SRO Tripunithura is more particularly ``` O.P.(C)No.998/2016 ``` ``` -:8:- ``` described as 'plaint B schedule' property. The properties mentioned in the aforesaid sale deeds were purchased from the funds of the partnership firm which had been generated by the equal contribution of its partners. Since the partnership firm is not a registered one and for sake of convenience, the sale deed no.4076/06 was executed in the name of the 1st defendant and sale deed no.4075/06 was executed in the name of the wife of the 1st defendant, who is the 2nd defendant herein. The 2nd defendant is made as party in the above suit since the plaint B schedule property has been purchased by the firm in the name of 2nd defendant. But it is reiterated that the aforesaid purchases were from the funds of the partnership and hence the properties covered under the said documents are the properties of the firm. It is submitted that after the purchase, the said properties are developed by the plaintiff as partner of the firm. Certain disputes that arose during the development of the said properties were settled by the plaintiff himself. It is submitted that all the development works including filling of mud and spade works in the said properties are done by the plaintiff as a partner of the firm. It is submitted that the plaintiff's and defendant's are in possession of the said properties in the capacity of partners of the firm. Hence the plaint A and B schedule properties are the capital assets of the firm.” ## 10. The petitioners/defendants filed Ext.P2 written statement, inter alia, contending as follows: “2. The above suit is not maintainable either in law or on facts The valuation shown in the plaint is not correct. As regards the first relief in the plaint, the plaintiff had not stated what the estimated value of his share is. As regards the relief (b), these defendants are the absolute owners in exclusive possession and enjoyment of the plaint A and B schedule properties. Real estate business was never an ``` O.P.(C)No.998/2016 ``` ``` -:9:- ``` object of the firm. Suit is grossly under valued. Present market value of the plaint schedule properties is more than Rs. 5 lakhs per cent. Therefore a simple suit for a decree for dissolution of firm and for allotment of alleged share in the properties belonging to these defendants is not maintainable. Plaintiff has to pay the court fee on the basis of the market value of the plaint schedule property. Moreover the second defendant is an unnecessary party. Therefore the above suit is bad for mis-joinder of parties. Plaintiff being the managing partner of the firm is duty bound to place all the records and accounts of the firm before this Honourable court. Even though the first defendant on so many occasions demanded the plaintiff to hand over the records of the firm including the utilisation of the 26 lakhs rupees received from him, there was no positive response from the side of the plaintiff.” 11. The court below, after appreciating the pleadings in the plaint and the contentions raised in Ext.P3 application has passed Ext.P4 order, which reads as follows: “However, in the same decision it was held that the same reasoning in partition suit where amount stated by plaintiff has ordinarily to be accepted by court in computing the court fee payable in respect of said relief, will also be applied to suits filed for dissolution of partnership and accounting under section 36 of the Kerala Court Fees and suit valuation ``` O.P.(C)No.998/2016 ``` ## `-:10:-` Act. Being ½ share of plaintiff Rs. 2.5 lakhs was shown as valuation for court fee. I find that plaintiff is correct in calculating court fee. Suit was properly valued and balance court fee remitted was correct. In the result, the issue is found in favour of plaintiff.” ## 12. In **Ratnavarmaraja v. Vimala** [AIR 1961 SC 1299], the Hon'ble Supreme Court has emphatically held thus: “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 ``` O.P.(C)No.998/2016 ``` ``` -:11:- ``` in revision exercised by the High Court under Section 115 of the Code of Civil Procedure is strictly conditioned by clauses (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. But counsel for the defendant says that by Act 14 of 1955 enacted by the Madras Legislature which applied to the suit in question, the defendant has been invested with a right not only to contest in the trial court the issue whether adequate court fee has been paid by the plaintiff, but also to move the High Court in revision if an order contrary to his submission is passed by the court. Reliance in support of that contention is placed upon sub-section (2) of Section 12. That sub-section, insofar as it is material,provides: “Any defendant may, by his written statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim plead that the subjectmatter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. If the court decides that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient, the court shall fix a date before which the plaint shall be amended in ``` O.P.(C)No.998/2016 ``` ``` -:12:- ``` accordance with the court's decision and the deficit fee shall be paid.…” [emphasis supplied] 13. The above view has been reiterated by the Hon'ble Supreme Court in a catena of precedents and recently in **A.Nawab John and Others v. V.N.Subramaniyam** [(2012) 7 SCC 738]. 14. Therefore, going by the law declared above, the defendant has only the right to point out in the written statement that the plaint is undervalued and no proper court fee is paid, and his limited role ends there. Then the matter is within the domain of the court. The defendant, thereafter, cannot be aggrieved by any decision taken by the court because payment of court fee is a matter between the plaintiff and the State and to be determined by the court. 15. Even otherwise, whether the assertions made by the respondent, that the plaint ‘A’ and ‘B’ schedule ``` O.P.(C)No.998/2016 ``` ``` -:13:- ``` properties belongs to the firm or not, is a matter of evidence. If the court below finds the same is the property of the firm, it goes without saying that it is a matter that falls squarely within the purview of Section 36 of the Act. On the contrary, if it is found that it is not the property of the firm, needless to mention, the petitioners’ prayer will have to be outrightly rejected. 16. It is trite, for the purpose of valuation and jurisdiction, only the averments in the plaint can be looked into before the trial. 17. Thus, at the present stage and going by the law laid down in **Ratnavarmaraja** and **A.Nawab John** (supra), this Court is of the view that the objection of the petitioners has been considered by the court below through the impugned order, and the petitioners’ role ends there. The said issue cannot be precipitated further and the suit cannot be stalled on ``` O.P.(C)No.998/2016 ``` ``` -:14:- ``` the said ground. If the court below finds the properties are of the firm, then necessarily, Section 36(2) of the Act comes into play, and a final decree can be passed only after the respondent pays the requisite court fee. 18. In the above conspectus, I hold that court below has not over stepped its bounds of power or authority, warranting interference by this Court under Article 227 of the Constitution of India. The original petition fails and is dismissed. The court below is directed to dispose of the suit, in accordance with law, in precedence to other pending suits. Sd/- ## **C.S.DIAS,JUDGE** DST/26.10.22 P.A.To Judge ``` O.P.(C)No.998/2016 ``` ## `-:15:-` ## `APPENDIX` |`PETITIONER EXHIBITS`|| |---|---| |`EXT.P1`|`COPY OF THE PLAINT IN OS 1046/2012 ON THE`| ||`FILE OF FIRST ADDITIONAL SUB COURT,`| ||`ERNAKULAM.`| |`EXT.P2`|`COPY OF WRITTEN STATEMENT FILED BY THE`| ||`PETITIONERS IN OS 1046/2012 ON THE FILE OF`| ||`FIRST ADDITIONAL SUB COURT, ERNAKULAM.`| |`EXT.P3`|`COPY OF IA 4324/2015 FILED BY THE`| ||`PETITIONERS.`| |`EXT.P4`|`COPY OF THE ORDER DATED 9.11.15 IN IA`| ||`4324/2015 IN OS 1046/2012 PASSED BY THE`| ||`FIRST ADDITIONAL SUB COURT, ERNAKULAM.`|