IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN
FRIDAY, THE 11TH FEBRUARY 2011 / 22ND MAGHA 1932
**WP(C).No. 18699 of 2010(O)**
-------------------------[OS.394/2009 OF THE PRINCIPAL MUNSIFF'S COURT.,ERNAKULAM]
....................
PETITIONER(S):
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M/S.SARGAM BUILDERS PVT.LTD.,
MANADATH BUILDING, MARKET ROAD, ALUVA, REPRESENTED BY ITS CHAIRMAN V.K.ABDUL RAHIM, S/O.KUNJALI SARGAM, WATER LAND ROAD, COCHIN.
BY ADV. SRI.SAJU.S.A
RESPONDENT(S):
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1. PATRIC, S/O.ELEZABATH AND VARGHESE, ALUMKAL HOUSE, VALLARPADAM KARA, KULAVUKADU VILLAGE, MANAYANNOOR TALUK, NOW RESIDING AT ALUMKAL HOUSE, AROOR KARA AROOR VILLAGE, CHERTHALA TALUK.
2. RAJAN, S/O.ELEZABATH AND VARGHESE, ALUKKAL HOUSE, KOOTTALA KARA, PATTIKADU VILLAGE, THRISSUR TALUK.
3. ROSILY, W/O.THOMAS, ALUMKAL HOUSE, AMEDKAR NAGAR, AVANNOOR KARA, AVANNOOR VILLAGE, THRISSUR TALUK.
4. BINOY, S/O.THOMAS ALUMKAL HOUSE, (DIED) AMBEDKAR COLONY, AVANNOR KARA, AVANNOOR VILLAGE, THRISSUR TALUK.
**WP(C).No. 18699 of 2010(O)**
**2**
5. MANU, S/O.THOMAS ALUMKAL HOUSE, AMBEDKAR COLONY, AVANNOOR KARA, AVANNOOR VILLAGE, THRISSUR TALUK.
6. M.A.JOHN, S/O.LATE ROSY AND ANTONY, PENTACOSTH MISSION PASTER, MANAYIL HOUSE, KONNATHADAY P.O., VELLATHOOVAL VIA, IDUKKI DISTRICT.
7. EADISON, S/O.LATE ROSY AND ANTONY, MANAYIL HOUSE, VALLARPADAM KARA, MULAVUKADU VILLAGE, KANAYANNUR TALUK, NOW RESIDING AT WITH MARY MARGRET, DIVISIONAL ENGINEER, TELEPHONE EXCHANGE, DESABHIMANI ROAD, KALOOR, COCHIN.
8. MARY MARGRET, AGED ABOUT 53 YEARS, D/O.LATE ROSY AND ANTONY, MANAYIL HOUSE, VALLARPADAM KARA, MULAVUKADU VILLAGE, KANAYANNUR TALUK, NOW WORKING AS DIVISIONAL ENGINEER, TELEPHONE EXCHANGE, DESABHIMANI ROAD, KALOOR, COCHIN.
9. RAJEENA ELEIZABATH, AGED ABOUT 49 YEARS, D/O.ROSY AND ANTONY, -DO-, -DO-, NOW RESIDING WITH MARY MARGRET, DIVISIONAL ENGINEER, -DO-.
10. TRESSIA IRISH MILTON LOPUS PALAMATTAM, W/O.MILTON LOPUS AND D/O.ROSY AND ANTONY, -DO-, WORKING AS POST WOMEN, VALLARPADAM POST OFFICE, VALLARPADAM KARA, MULAVUKAD VILLAGE, KANAYANNUR TALUK.
11. ANTONY @ KUNJUMON, AGED ABOUT 40 YEARS, S/O.LUCY AND MANUAL, PAYYHAPILLY, SOUTH THAMARAPARAMBU, FORT KOCHIN, ERNAKULAM.
12. MINI, AGED ABOUT 38 YEARS, D/O.LUSY AND MUNUEL, PAYYAPILLY, SOUTH THARAPARAMBU, FORT COCHIN, ERNAKULAM.
13. BABY @ SEBASTIAN, AGED ABOUT 56 YEARS, S/O.VERONY AND THOMAS EARATHARA, EARATHARA HOUSE, ELINJIPRA KARA, ELINJIPRA VILLAGE MUKUNDAPURAM TALUK.
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14. ANTONY JOSEPH @ KUNJUMON, AGED 45 YEARS, VERONY AND THOMAS, -DO-, -DO-.
15. ALOYSIUS, AGED 44 YEARS, S/O.VERONY AND THOMAS , -DO-.
16. GEORGE @ SANTHOSH, AGED 37 YEARS, S/O.VERONY AND THOMAS, -DO-.
17. ALPHONSA @ ANNIE, AGED 51 YEARS, D/O.VERONY AND THOMAS, -DO-.
18. MABLE ROBERT, AGED 49 YEARS, S/O.VERONY AND THOMAS, -DO-.
R1, 2,3,5 BY ADVS. SRI.V.CHITAMBARESH, SENIOR ADVOCATE, SRI.GIGIMON ISSAC & SRI.BABY THOMAS
R6 BY ADVS. SRI.P.FAZIL &
SRI.SREEJITH V.S.
SRI.V.J.BINU JELSON FOR
R7,8,9 & R.10 BY ADVS.SRI.O.SAJEEVAN &
SRI.T.R.MADHU
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
**WP(C).No. 18699 of 2010(O) :: ::**
## **APPENDIX**
## **PETITIONERS' EXHIBITS:**
EXT.P1: TRUE COPY OF THE PLAINT IN O.S.394/2009 ON THE FILE OF THE MUNSIFF OF ERNAKULAM, DATED 23.3.2009.
EXT.P2: TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN O.S.394/09 ON THE FILE OF THE MUNSIFF OF ERNAKULAM, DATED 15.5.2009.
EXT.P3: TRUE COPY OF THE ORDER OF THE COURT OF THE MUNSIFF OF ERNAKULAM, IN O.S.394/09 DATED 9.2.2010.
## **RESPONDENTS' EXHIBITS: NIL**
//true copy//
P.S. To Judge
SK/-
# **THOTTATHIL B.RADHAKRISHNAN & S.S.SATHEESACHANDRAN, JJ.**
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## **W.P.(C).No.18699 of 2010**
**--------------------------------------Dated this the 11[th] day of February, 2011**
## **JUDGMENT**
## **THOTTATHIL B.RADHAKRISHNAN, J.**
This matter is before us on a reference by the learned single Judge pointing out the nice distinctions within the different sub-sections of Section 37 of the Kerala Court Fees and Suits Valuation Act, 1959 [Act 10 of 1960 **]** {for short “ **the Act** ”}, and refering to the judgment of this court in **Nabeesa v. Kunhami {2006 (4) KLT 757}** . The issue focussed in the reference order is as to whether jurisdiction has to be determined on the basis of valuation with reference to Section 37(2) read with Section 7(3A) or whether it could be brought under Section 7(2) of the Act.
2. Before proceeding to consider the issue
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referred to the Bench, we thought it appropriate to see whether the referred question arises on the pleadings before the court of first instance, in the suit for partition filed in the year 2009.
3. In paragraph 6 of the plaint, the plaintiffs adopted the mode of applying the multiplier in terms of Section 7(2) and pegged the market value of the property at Rs.50,000/- for the purpose of jurisdiction. They accordingly instituted the suit before the Munsiff's Court, being the lowest court of competent jurisdiction, and paid the court fee of Rs.50/- in terms of Section 37 (2)(i) of the Act.
4. Refuting the averments in paragraph 6 of the plaint, the writ petitioner/the 14[th] defendant pleaded in paragraph 4 of its written statement, that the court
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below has no pecuniary jurisdiction to entertain the suit and the valuation shown in the plaint is not correct, as also the payment of court fee. It was contended that the plaintiffs, going by their own admissions, ought to have remitted court fee under Section 37(1) of the Act.
5. The matter had come up to the stage of trial and it was then that the learned Munsiff was persuaded to take up two issues; one relating to the court fee and the jurisdiction and the other, question of limitation.
6. As regards the plea of limitation, the learned Munsiff took the view that there is a plea of ouster and therefore, the issue cannot be answered without concluding the trial. Insofar as the plea regarding court fee and jurisdiction, the learned Munsiff
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held that the valuation is made on the basis of market value and there is nothing to hold that market value is incorrect. It was noticed that the suit was for partition. Accordingly, issue No.1 relating to the valuation and court fee was answered in favour of the plaintiffs. It is this order that is challenged.
7. As already noted, the plea of the 14[th] defendant in paragraph 4 of its written statement was that the plaintiffs ought to have remitted court fee in the suit under Section 37(1) and the court fee paid under Section 37(2) is not correct. Sub-section (1) of Section 37 of the Act applies to cases where the plaintiffs is excluded from possession of the property. Going by the pleadings in the plaint, the plaintiff stand to assert joint possession.
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8. On the basis of the submissions made before us by the learned senior counsel appearing on both sides, the argument of the writ petitioner/14[th] defendant is not that the suit ought to have been valued and court fee paid in terms of Section 37(1), but that the valuation ought to have been determined on the basis of the market value in accordance with Section 7 (3A) and thereby, hold that the value of the subject matter of the suit would exceed Rs.1 lakh, taking it out of the pecuniary jurisdiction of the Munsiff's Court. This was not the plea raised or placed for consideration before the learned Munsiff. The point raised and decided upon by the learned Munsiff was as to whether court fee should have been paid under Section 37(1) or whether it should have been paid under Section 37(2) of the Act.
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It is not the determination of market value that was agitated before the court below. We say this, having regard to the contents of the impugned order and the pleadings in paragraph 4 of the written statement of the 14[th] defendant, the writ petitioner before us. In that view of the matter, the learned Munsiff cannot be found fault with, for having been passed the impugned order focussing on Section 37 of the Act.
9. In the aforesaid situation, we looked at the plaint, the written statement, as also the copies of some of the documents made available to us. There was no plea or material by the writ petitioner/14[th] defendant, which could have triggered an investigation by the court to adjudicate on the valuation made by the plaintiff for the purpose of court fee, at any rate, for it to have an
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impact on the question of jurisdiction.
10. This writ petition is instituted under Article 227 of the Constitution of India. We find that the impugned order does not visit the writ petitioner with injustice and the same does not call for any interference in exercise of the authority under Article 227. We may, however, note that the suit which had virtually gone up for trial has been effectively stultified by the exercise carried out under the plea of lack of jurisdiction. The court below will, therefore, make every effort for the expeditious disposal of the suit.
11. In the light of what we have stated above, the issues covered by the reference order are not being answered, particularly because, they do not arise for consideration, having regard to the aforesaid. We
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accordingly leave open the issues mentioned in the reference order.
In the result, the writ petition is dismissed.
No costs.
Sd/-
**(THOTTATHIL B.RADHAKRISHNAN) JUDGE**
Sd/-
**(S.S.SATHEESACHANDRAN)**
**JUDGE**
sk/
//true copy//
