Rasily T.K. and Mirsha Khan.T.K. v Seema Khaise and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 3RD OCTOBER 2011 / 11TH ASWINA 1933** **OP(C).No. 3159 of 2011(O) ------------------------OS.169/2011 of SUB COURT, PALA ....................** ## **PETITIONERS/DEFENDANTS 1 & 2** - **----------------------------** **1. RASILY T.K., AGED 46 YEARS, S/O.LATE KUNJUPILLA RAWTHER, RESIDING AT MANKASSERIL HOUSE, KANJIRAPPALLY.P.O., KANJIRAPPALLY KARA, KANJIRAPPALLY VILLAGE, KANJIRAPPALLY TALUK.** **2. MIRSHA KHAN.T.K., AGED 43 YEARS, S/O.LATE KUNJUPILLA RAWTHER, RESIDING AT MANKASSERIL HOUSE, KANJIRAPPALLY.P.O., KANJIRAPPALLY KARA, KANJIRAPPALLY VILLAGE, KANJIRAPPALLY TALUK.** **BY ADV. SRI.NOBLE MATHEW** **RESPONDENTS/PLAINTIFF AND DEFENDANTS 3 TO 7** **----------------------------------------------** **1. SEEMA KHAISE, AGED 33 YEARS, W/O.M.D.KHAISE, RAHMATH MANZIL, VADAKKENILA.P.O., POLAYATHODU KARA, KOLLAM DISTRICT.** **2. SAINABA BEEVI, AGED 65 YEARS, W/O.LATE KUNJUPILLA RAWTHER, RESIDING AT MANKASSERIL HOUSE, KANJIRAPPALLY.P.O., DO. KARA, DO. VILLAGE, DO. TALUK.** **3. ANSALNA SHAHEED, AGED 41 YEARS, W/O.SHAHEED UMAR, RESIDING AT KALLARACKAL HOUSE, MANIKKUNNAM KARA, THIRUVARPU VILLAGE, KOTTAYAM.** **JJJ** **...2..** **-2-** **OP(C).No. 3159 of 2011(O)** **4. SHAMIA NAZAR, AGED 39 YEARS, W/O.ABDUL NAZER, RESIDING AT KOYICKAL HOUSE, KRISHNAPURAM KARA, KAYAMKULAM VILLAGE.** **5. SHERINA AJMAL, AGED 37 YEARS, W/O.P.M.P.M.AJMAL, PARACKAL, KHADEEJA MANZIL, KANJIRAPPALLY KARA, KANJIRAPPALLY VILLAGE.** **6. SWAPNA SHAFI, AGED 35 YEARS, W/O.SHAFI.P.A., PARAKKAVETTY HOUSE, NEAR RAILWAY STATION, CHERUKARAKUNNU KARA, CHANGANASSERY VILLAGE.** **THIS O. P. (CIVIL) HAVING COME UP FOR ADMISSION ON 03/10/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **JJJ** **OP(C).No. 3159 of 2011(O)** ## **APPENDIX** **PETITIONER'S EXHIBITS:** |**EXHIBIT P1:**|**PHOTOSTAT COPY OF THE SUIT FILED BY THE FIRST**| |---|---| ||**RESPONDENT HEREIN BEFORE THE SUBORDINATE JUDGE'S**| ||**COURT, PALA.**| |**EXHIBIT P2:**|**PHOTOSTAT COPY OF THE INTERIM INJUNCTION ORDER ISSUED**| ||**BY THE HONOURABLE SUBORDINATE JUDGE'S COURT, PALA**| ||**DATED 3.8.2011.**| |**EXHIBIT P3:**|**PHOTOSTAT COPY OF THE INTERLOCUTORY APPLICATION FILED**| ||**BY THE PETITIONERS IN OS.NO.169/2011.**| |**EXHIBIT P4:**|**PHOTOSTAT COPY OF THE OBJECTION FILED BY THE FIRST**| ||**RESPONDENT IN IA.NO.1550/2011 IN IS.NO.169/2011.**| |**EXHIBIT P5:**|**PHOTOSTAT COPY OF THE WILL EXECUTED BY THE PETITIONERS**| ||**AS WELL AS RESPONDENT NO.1 AND 3 TO 6 FATHER AND**| ||**HUSBAND OF THE RESPONDENT NO.2.**| |**EXHIBIT P6:**|**PHOTOSTAT COPY OF THE WRITTEN STATEMENT FILED BY THE**| ||**PETITIONERS IN OS.NO.169/2011.**| **RESPONDENT'S EXHIBITS: NIL** **//TRUE COPY// P.S.TO JUDGE** **JJJ** ## **THOMAS P.JOSEPH, J.** **==================================== O.P(C) No.3159 of 2011 ==================================== Dated this the 03[rd] day of October, 2011** ## **J U D G M E N T** This Original Petition is filed by defendants 1 and 2 in O.S. No.169 of 2011 of the court of learned Sub Judge, Pala aggrieved by the direction issued by the learned Sub Judge in Ext.P3 - I.A. No.1550 of 2011 that the said application will be considered after all the defendants entered appearance and filed written statement. 2. First respondent sued petitioners and other defendants for partition and separate possession of 7/72 shares over 13 items of property referred to in plaint A to C schedules. Petitioners (who are said to have filed written statement) filed Ext.P3, application – I.A. No.1550 of 2011 to reject the plaint under Rule 11 of Order VI of the Code of Civil Procedure (for short, “the Code”) as court fee paid is not correct. First respondent filed Ext.P4, objection. On Ext.P3, application learned Sub Judge is said to have directed that the same will be considered on other defendants entering appearance and filing written statement. The said order (copy of the order is not produced) is under challenge. **O.P(C) No.3159 of 2011** -: 2 :- 3. Learned counsel for petitioners contended that under Section 12 of the Kerala Court Fees and Suits Valuation Act (for short, “the Act”) in every suit instituted in any court other than the High Court the court shall before ordering the plaint to be registered decide on material allegations contained in the plaint and all the materials and statement if any filed under Sec.10 the proper court fee payable. Reliance is placed on sub-sec.(2) of the said provision which states that 'any' defendant may file written statement before the first hearing of the suit or before evidence is recorded on merit of the claim plead that subject matter of the suit has not been properly valued. Learned counsel has placed reliance on the decision in **Joseph v. Sara** **Thomas** (1996 [2] KLT 851), **P.P.S. Pillai v. Catholic Syrian Bank** (2000 [3] KLT 629) and **Sham Lal v.** ## **Atmanand Jain Sabha (Regd.), Dal Bazar** (1987 SC 197) to contend that even based on the written statement filed by petitioners the court was obliged to decide question of court fee. Learned counsel argued that the expression “first hearing” does not mean the date fixed for return of summons but it is the day when the court applied its mind to the case. 4. That is the principle laid down by the Supreme Court in **Sham Lal v. Atmanand Jain Sabha (Regd.) Dal Bazar** **O.P(C) No.3159 of 2011** -: 3 :- referred to above. Now the question is whether even before other defendants appeared and filed written statement or are declared absent, it was possible for the learned Judge to consider the question regarding valuation of plaint and payment court fee. 5. In **Joseph v. Sara Thomas** the scope of application of Sec.12(1) and (2) of the Act was referred to. No doubt, it is stated that under Sec.12(2) of the Act 'any' defendant may in the written statement filed before the first hearing of the suit or as otherwise referred in sub-sec.(2) of Sec.12 of the Act plead that the subject matter of the suit has not been properly valued or court fee paid is not sufficient. In **P.P.S. Pillai v. Catholic Syrian Bank** it is observed in paragraph 6 that on the scheme of sub-secs.(1) and (2) of Sec.12 once the defendant has raised a question of undervaluation of the plaint in the written statement originally filed and the court has raised an issue on that question, defendant can insist that the issue be heard before the case taken for evidence. 6. The above decisions would only go to show that even if one of the defendants raised objection regarding valuation of the subject matter of the suit and payment of court fee based on which an issue is framed, that issue is to be decided. But based on the written statement filed by petitioners/defendants 1 and 2 **O.P(C) No.3159 of 2011** ## -: 4 :- alone, when other defendants are yet to be served, appear in court and file written statement or are to be declared absent after being duly served, there cannot be framing of an issue. To frame an issue under Rule 1 of Order XIV of the Code, the preliminary steps should be over. Here it is submitted that petitioners/defendants 1 and 2 alone have appeared and other defendants are yet to appear. In other words other defendants are either to appear and file written statement or are to be declared absent. Then only question of framing an issue based on the written statement filed by the petitioners would arise. 7. I do not forget that there are different stages of considering proper valuation of subject matter and court fee paid. One is before the court registers the plaint (under Order VII Rule 11 of the Code) and the next is after the suit is registered and after issue has been raised on valuation and court fee. The third is when there is an objection raised by the court fee examiner under Sec.18 of the Act. In the present case the suit has already been registered. No doubt even after registration of the case it is within the power of the court to invoke Rule 11 of Order VII of the Code if circumstances warranted that but as aforesaid it is not merely on the contention of one or some of the defendants when other defendants are yet to enter appearance and put in their pleadings. ## **O.P(C) No.3159 of 2011** -: 5 :- 8. As aforesaid other defendants have not appeared or declared absent. In that situation learned Sub Judge was correct in directing that the application will be considered after the remaining defendants appeared and filed written statement if any or declared absent and an issue based on the plea of petitioners is raised in view of the contentions which petitioners claim to have raised in the written statement. Original petition is dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv