Raveendran. R v Thomas John and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.RAMAKRISHNAN** **FRIDAY, THE 9TH DAY OF DECEMBER 2016/18TH AGRAHAYANA, 1938** **OP(C).No. 3162 of 2016 (O) ---------------------------** **IA.NO.519/2015 IN OS.334/2009 OF MUNSIFF COURT, PUNALUR -----------** ## **PETITIONER(S)/PETITIONER/DEFENDANT: ----------------------------------** **RAVEENDRAN. R,** **S/O.RAGHAVAN, AGED 56 YEARS, RESIDING AT ANANDA BHAVAN, EDAYAM, ARAKKAL VILLAGE, PATHANAMTHITTA TALUK.** **BY ADVS.SRI.O.V.MANIPRASAD SRI.VINODE V. LUKA** ## **RESPONDENT(S)/RESPONDENTS/PLAINTIFFS:** **-------------------------------------** **1. THOMAS JOHN, MAMMOOTTIL BUNGLOW, EDAYAM, ARAKKAL VILLAGE, PATHANAPURAM TALUK-689695.** **2. C.K.MARYKUTTY, MAMMOOTTIL VEEDU, PULLAMKODU, EDAYAM, ARAKKAL VILLAGE., PATHANAPURAM TALUK-689695.** **3. MEMMEN THOMAS, MAMMOOTTIL VEEDU** - **PULLAMKODU, EDAYAM, ARAKKAL VILLAGE, PATHANAPURAM TALUK-689695.** **4. JACOB THOMAS, MAMMOOTTIL VEEDU,** - **PULLAMKODU, EDAYAM, ARAKKAL VILLAGE, PATHANAPURAM TALUK-689695.** **5. JACOB GEORGE,MAMMOOTTIL VEEDU,** - **PULLAMKODU, EDAYAM, ARAKKAL VILLAGE, PATHANAPURAM TALUK-689695.** **6. GIJI GEORGE,MAMMOTTIL VEDU,** - **PULLAMKODU, EDAYAM, ARAKKAL VILLAGE, PATHANAPURAM TALUK-689695.** **7. REGI GEORGE, MAMMOTTIL VEEDU,** - **PULLAMKODU, EDAYAM, ARAKKAL VILLAGE, PATHANAPURAM TALUK 689 695.** **THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 09-12-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PJ** ## **OP(C).No. 3162 of 2016 (O)** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** - **P1 A TRUE COPY OF THE PLAINT IN OS NO. 334/2009 ON THE FILE OF THE MUNSIFF COURT, PUNALUR** - **P2 A TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN THE SUIT** - **P3 A TRUE COPY OF THE ORDER DATED 10.11.2009 IN IA NO.2220/2009 IN OS NO. 334/2009** - **P4 A TRUE COPY OF THE JUDGMENT DATED 8.12.2016 IN CMA NO.40/2009 OF THE SUBORDINATE JUDGES COURT, KOTTARAKKARA** - **P5 A TRUE COPY OF THE APPLICATION FOR AMENDMENT OF THE PLAINT BY THE PETITIONER** - **P6 A TRUE COPY OF THE ORDER DATED 16.11.2011 IN IA NO.1790/2011** - **P7 A TRUE COPY OF THE COMMISSIONER'S REPORT** - **P8 A TRUE COPY OF THE IA NO. 519/2015 IN OS NO. 334/2009** - **P9 A TRUE COPY OF THE OBJECTION IN IA NO. 519/2015** - **P10 A TRUE COPY OF THE ORDER DATED 7.10.2016 IN IA.519/15 IN OS.334/09.** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** **NIL.** **/ TRUE COPY /** **P.S. TO JUDGE** **PJ** ## **K.RAMAKRISHNAN,** ## **-------------------------------------------------O.P.(C) No.3162 of 2016 ----------------------------------------------** _Dated this the 9[th] day of December, 2016_ ## **JUDGMENT** This petition has been filed by the petitioner challenging Ext.P10 order passed by the court below under Article 227 of the Constitution of India. 2. It is alleged in the petition that the respondents herein had filed Ext.P1 suit as O.S.334/2009 on the file of the Munsiff Court, Punalur, originally for injunction simplicitor restraining the defendants from trespassing into the property. The petitioner filed Ext.P2 written statement denying the right of the plaintiff over the plaint schedule property and also stated that they have made improvements in the property. The original written statement was filed on 6.2.2010 and injunction application was filed by the plaintiffs as I.A.2220/2009 and after hearing both sides by Ext.P3 order, the same was dismissed. It was taken up in appeal before the Sub Court, Kottarakkara as C.M.A. 40/2009 and by Ext.P4 judgment the same was partly allowed and the respondent who is the petitioner herein was restrained from further alienation of the plaint schedule property till the disposal of the suit. It is thereafter the plaintiff filed I.A.1790/2011 as Ext.P5 for amendment of the plaint seeking a prayer for mandatory injunction directing the defendants to remove the construction made and for recovery of 2 ## _**O.P.(C) No.3162 of 2016**_ possession and that amendment was allowed as per Ext.P6 order dated 16.11.2011. The petitioner filed additional written statement and a commission was taken out and the commissioner filed Ext.P7 report showing the nature of construction made in the property. It is thereafter the petitioner filed Ext.P8 application to consider the question of court fee payable as a preliminary issue and the respondents filed Ext.P9 objection. In Ext.P8 petition it was mentioned that the property was not properly valued and there is a building in the property and the value of the building and other improvements have not been added in the valuation portion and that will come to Rs.46,80,582/- and the property would have been valued on that basis for the purpose of court fee. The respondents filed Ext.P9 objection to the same, stating that they are not claiming any right over the building and the court fee paid was proper. The application was filed belatedly. The court below by Ext.P9 order dismissed the application. 3. Heard Sri.O.V.Maniprasad, counsel appearing for the petitioner as this court felt that the petition can be disposed of at the admission stage itself. 4. The counsel for the petitioner submitted that, the suit for recovery of possession and mandatory injunction and the court fee 3 ## _**O.P.(C) No.3162 of 2016**_ was assessed under section 30 of the court fees Act. The plaintiff should have paid court fee on the basis of the market value of the property, which has not been done. Further the nature of improvement in the property will go to show that, it will worth more than 46 lakhs, so the suit ought to have been valued on that basis. 5. It is an admitted fact that the suit was originally filed for injunction simplicitor in the year 2009 and at that time court fee was paid under Section 27(c) of the Kerala Court Fees and Suit Valuation Act. Therefore the suit was amended and the amendment was allowed as per order dated 03.09.2011 and additional written statement was filed. It was mentioned in the additional written statement that, sufficient court fee has not been paid. But there is nothing mentioned as to how the court fee paid is not correct. Merely because a contention was raised without substantiating the same, how the court fee paid is not correct, the court below is not expected to frame an issue on this aspect. Further it appears that, though the additional written statement was filed in the year 2011 itself, the issue was not pursued by the petitioner. A commissioner was taken out at the instance of the petitioner and the commissioner filed the report in the year 2011 itself assessing the value of the house and the construction 4 ## _**O.P.(C) No.3162 of 2016**_ done in the property as Rs.46,80,582/-. The plaintiff had mentioned that there is no income from the property and he want only evict the defendants from the property after removing the illegal construction made. Since the plaintiff is not claiming any right over the building constructed by the defendant and he wants that building to be removed by the defendant and deliver the property alone by way of mandatory injunction and recovery possession, he need not be directed to pay court fee for the value of the building as he is not claiming any relief in respect of the building. So under such circumstances, the court below was perfectly justified in coming to the conclusion that the plaintiff need not pay court fee for the value of the building assessed by the commissioner. 6. As regards the court fee paid is concerned, for the purpose of assessing court fee, if there is no income from the property then it has to be valued under Section 7 of the Court Fees Act. If there is any income from the property, then ten times income and if there is no income, then at the estimated value of the property and court fee has to be paid on such estimated value. The plaintiff had assessed value of the property on the basis of Section 7 and paid court fee for the same. It has been valued as provided under Section 7(3)(A) of the Court 5 ## _**O.P.(C) No.3162 of 2016**_ Fees Act, which says that: _“The market value of any property other than agricultural land and the building falling under Sub Section 2 and 3 shall be the value, it will fetch on the date of institution of the suit”._ 7. The defendant had not produced any document to prove that the value assessed is less than the fair value fixed by the Government under Section 28A of the Stamp Act. Further in the decision reported in _**Smt.Thara Devi v. Sri. Thankur Radha Krishna Mahara**_ (1987 (4) SCC 69), the Supreme Court has held that: _“It is only in cases where it appears to the court on a consideration of the facts and circumstances of the case, that the valuation is arbitrary, unreasonable and the plaint has been demonstratively undervalued, the court can examine the valuation and can revise the same “_ 8. But in this case, except the value of improvements noted by the commissioner, there is nothing on record to show that the valuation made by the petitioner in the plaint on the basis of the allegations is arbitrarily low, so as to warrant the same to be interfered by this court. 9. Further Section 12(2) of the Act says that: _“It must be taken at the earliest possible time and if it is not raised at th earliest possible time, then the defendant is not entitled to take the same at a later stage as well.”_ 6 ## _**O.P.(C) No.3162 of 2016**_ In this case, the additional written statement was filed in the year 2011, except making a bold statement that the court fee paid in not correct, no details have been provided as to why the valuation is not correct and what is the estimated market value of the property as well not mentioned. So under such circumstances, the court below was perfectly justified in dismissing the application and I do not think that it suffers any infirmity warranting interference invoking the supervisory jurisdiction under Article 227 of the Constitution of India. So the petition fails and the same is hereby dismissed _in limine_ . Registry is directed to communicate this judgment to the court below at the earliest. _Sd/-_ **K. RAMAKRISHNAN, JUDGE** //True Copy// P.A. to Judge ss