Minita Daphne Netto and Rudolf Netto v. Marget Benedict Rodrigues and Infant Jesus Church

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 29TH SEPTEMBER 2011 / 7TH ASWINA 1933 WP(C).No. 1004 of 2009(T) ------------------------OS.1473/2004 of I ADDL.MUNSIFF COURT,ERNAKULAM .................... PETITIONER(S): --------------- 1. MRS.MINITA DAPHNE NETTO, W/O.RUDOLF NETTO, RESIDING AT BUILDING NO.C.C.40/4724, LATER 40/5000, ERNAKULAM VILLAGE, BANERJI ROAD, ERNAKULAM, COCHIN - 682 031. 2. RUDOLF NETTO, S/O.LATE ANTONY NETTO, RESIDING AT BUILDING NO.C.C.40/4724, ERNAKULAM VILLAGE, BANERJI ROAD, ERNAKULAM, COCHIN - 682 031 BY ADV. SRI.N.SUBRAMANIAM SRI.M.S.NARAYANAN SRI.P.T.GIRIJAN SMT.USHA NARAYANAN RESPONDENT(S): DEFENDANTS ------------------------- 1. MRS.MARGET BENEDICT RODRIGUES, W/O.GOGI RODRIGUES, RESIDING AT LEONS APARTMENT, OPPOSITE SARITHA THEATRE, BANERJI ROAD, ERNAKULAM. 2. INFANT JESUS CHURCH, BROADWAY, ERNAKULAM. REPRESENTED BY ITS PARISH PRIEST, FR.JOSE PADIAMAPARAMBIL, RESIDING AT PAROCHIAL HOUSE, INFANT JESUS CHURCH, BROADWAY, ERNAKULAM. - (*) 3. JOSEY D'SILVA, RESIDING AT BANERJI ROAD, KAIKKAR, OPPOSITE CRYSTAL PALACE AT BANERJI ROAD, ERNAKULAM.(DELETED) 4. IGNATIOUS ALWIN, RESIDING AT BANERJI ROAD, KAIKKAR, ST.ALBERT'S LANE, BANERJI ROAD, ERNAKULAM. WP(C)NO.1004/2009 2 - (*)RESPONDENT NO.3 IS DELETED FROM PARTY AS PER ORDER ON IA NO.13401/2010 DATED 29.09.2011. ADV. SRI.K.L.JOSEPH FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C)NO.1004/2009 ## APPENDIX ## PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF COMMISSION REPORT EXT.P2 TRUE COPY OF WRITTEN OBJECTION TO COMMISSION REPORT EXT.P3 TRUE COPY OF ORDER OF TRIAL COURT EXT.P4 TRUE COPY OF ORDER OF HIGH COURT IN CRP NO.1073/2007 EXT.P5 TRUE COPY OF ORDER OF MUNSIFFS COURT //TRUE COPY// ## **THOMAS P. JOSEPH, J.** ## **-------------------------------------W.P.(C) No.1004 of 2009 -------------------------------------Dated this the 29[th] day of September, 2011.** ## **JUDGMENT** An issue regarding valuation of subject matter of the suit for the purpose of court fee is raised for a decision. 2. The question arose in O.S.No.1473 of 2004 of the court of learned First Additional Munsiff, Ernakulam filed by the petitioners for a declaration of their right of kudikidappu over the suit property – three cents out of the four cents scheduled in the plaint and the structure thereon and for consequential prohibitory injunction. For the purpose of valuation, petitioners valued the relief of declaration at `10,000/- being the market value of the property and paid court fee under Sec.25 of the Kerala Court Fees and Suits Valuation Act (for short, “the Act”). The relief of prohibitory injunction was valued at `500/- and court fee was paid under Sec.27(c) of the said Act. Respondents in paragraph 8 of their written statement challenged the valuation made by the petitioners. Learned Munsiff embarked on an enquiry as provided under Sec.19 of the Act and appointed an Advocate Commissioner to ascertain the value of the property. The Advocate Commissioner after inspection on 30.07.2007 submitted Ext.P1, report dated 31.07.2007 wherein he reported that the property is valued at `24 lakhs. Based on that, learned Munsiff passed Ext.P3, order directing petitioners to amend the plaint accordingly. That order was challenged in this Court in **WP(C)No.1004/2009** 2 C.R.P.No.1073 of 2007 on various grounds including that learned Munsiff was not correct in not considering Ext.P2, objection filed by the petitioners to Ext.P1, report of the Advocate Commissioner. This Court disposed of the civil revision by Ext.P4, order dated 26.06.2008. This Court was of the opinion that since petitioners claimed declaration and consequential injunction valuation must be under Sec.25(b) of the Act and even if the alternative argument is accepted it should come under Sec.25(d)(i) of the Act. This Court was not satisfied with the manner in which learned Munsiff passed Ext.P3, order, set aside that order and directed learned Munsiff to re-consider issue No.1 and decide on what head the suit is to be valued and court fee is to be paid and pass appropriate orders in accordance with law. Pursuant to Ext.P4, order learned Munsiff has passed Ext.P5, order again relying on Ext.P1, report and directing petitioners to pay court fee under Section 25(b) of the Act taking the market value of the property shown by the Advocate Commissioner (`24 lakhs). The said order is under challenge. 3. Learned counsel for petitioners has contended that the order (Ext.P5) acting upon Ext.P1, report without referring to the objection preferred by the petitioners to that report is unsustainable. Reliance is placed on the decisions in **Uma Kanta Banerjee v. Renwick and Co.Ltd. (AIR 1953 Calcutta 717, Harbans Lal v. Jagmohan Saran (AIR 1986 SC 302 - paragraph 5)** and **Mst.Rattani and others v. Dharam Chand alias** **WP(C)No.1004/2009** 3 **Dharam and others (1999 (5) AIHC 3581)** . In the last of the decisions it is held that the report of the Advocate Commissioner cannot be relied upon without first deciding the objections made thereto by a party. 4. In Ext.P1, report the Advocate Commissioner has valued the property at `24 lakhs. On going through Ext.P1, report it would appear that the Advocate Commissioner had in mind the potential value of the property having regard to its location. It is stated that the property is situated near the High Court and Marine Drive and considering the location and nature of the property, the Advocate Commissioner is of opinion that the 'market value' of the property at the time of institution of the suit is `24 lakhs. Ext.P2 is the objection preferred by petitioners to that report. Various objections are raised in Ext.P2. It is contended that the assessment of market value made by the Advocate Commissioner is based on whims and fancies and the market value stated as Rupees six lakhs per cent is illogical and unreasonable. It is pointed out in the objection that the Advocate Commissioner has not verified any document to arrive at the conclusion that the market value is `24 lakhs. It is argued by the learned counsel that at any rate, for the purpose of valuation under the Act what is relevant so far as this case is concerned is not the potential value of the property it would fetch having regard to its location but, the market value as assessed under Sec.7 of the Act. 5. Learned counsel for respondents has contended that the **WP(C)No.1004/2009** 4 contention that Ext.P2, objection to the report of the Advocate Commissioner has not been referred to by the learned Munsiff in Ext.P5, order cannot stand since that objection has been raised in C.R.P.No.1073 of 2007 but not considered and hence petitioner cannot again urge that objection. It is pointed out that ground No.7 in C.R.P.No.1073 of 2007 was as regards learned Munsiff passing Ext.P3, order without considering Ext.P2, objection on Ext.P1, report. It is contended that the property in question is situated in the heart of Ernakulam City and hence its potential value has to be taken into account. 6. This Court in Ext.P4, order observed that since petitioners have claimed declaration and injunction, payment of court fee must be under Sec.25 (b) of the Act. Alternatively it is opined that if the argument of respondents is accepted it may be under Sec.25(d)(i) of the Act. Learned Munsiff in Ext.P5, order held that court fee is payable under Sec25(b) of the Act. Having regard to the nature of the reliefs prayed for, I do not find reason to interfere with that finding. 7. The next question is whether learned Munsiff is correct in referring to Ext.P1, report to decide the market value. For the purpose of valuation for jurisdiction and court fee even under Section 25(b) of the Act the court has to consider the market value of the property. The manner of assessment of market value is given in Sec.7 of the Act. Petitioners have no case that the three cents referred to in the plaint schedule is agricultural land. Therefore Sec.7 (2) of the Act has no application. Then the learned Munsiff has to decide whether it is Sub-sec.(3) or (3A) of Sec.7 of the Act which applies to the facts of the case and **WP(C)No.1004/2009** 5 based on that finding decide value of the subject matter. If Sub-sec.(3A) of Sec.7 of the Act applies, what is taken to be account is the value the land will fetch on the date of institution of the suit. 8. I do not forget that learned counsel for respondents has a contention that objection to Ext.P1, report cannot be urged again. But Ext.P4, order does not show that the said objection was considered in C.R.P.No.1073 of 2007. Hence the contention of learned counsel for respondent cannot be accepted. Ext.P2, objection requires to be considered. If Sub-sec.(3A) of Sec.7 of the Act applies, necessarily the court has to look into Ext.P2, objection on Ext.P1, report and pass appropriate orders. On the other hand if Sub-sec.(3) of Sec.7 of the Act applies, necessarily the value of the property has to be fixed with regard to the rental value of the structures situated in the property. Resultantly this Writ Petition is allowed and Ext.P5, order is set aside. Learned Munsiff is directed to pass fresh orders on issue No.1 in the light of the observations made above. Leaned Munsiff shall expedite the decision on issue No.1 since the suit is of the year 2004 and as the learned counsel for respondent submits a connected suit of the year, 2002 is also pending decision. **THOMAS P.JOSEPH, Judge.** **cks**