Subhashini D/o Madhambath Sankaran & Kalyani v. Sathi, Joshy & Jojo and others

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ``` PRESENT ``` ``` THE HONOURABLE MR.JUSTICE C.S.DIAS ``` ``` WEDNESDAY, THE 28[TH] DAY OF SEPTEMBER 2022 / 6TH ASWINA, 1944 ``` ``` OP(C) NO. 2384 OF 2016 ``` ``` AGAINST THE ORDER DATED 27.08.2016 IN OS NO.266/2010 OF II ``` ``` ADDITIONAL SUB COURT,THRISSUR ``` ## `PETITIONERS/ DEFENDANTS 3 TO 5:` ``` 1SATHI AGED 73 YEARS, W/O. LATE UTHAMAN @ PURUSHOTHAMAN, S/O. MADAMBATH KUNJIMAMA AND KALYANI, P.O. KURUMBILAVU, THRISSUR. 2JOSHY S/O. MADAMBATH UTHAN @ PURUSHOTHAMAN, P.O., KURUMBILAVU, THRISSUR. 3JOJO S/O. MADAMBATH UTHAN @ PURUSHOTHAMAN, P.O. KURUMBILAVU, THRISSUR. BY ADVS.SRI.M.R.VENUGOPAL SMT.DHANYA P.ASHOKAN ``` ## `RESPONDENTS/ PLAINTIFFS 1 TO 3 AND DEFENDANTS 1, 2 6 TO 13` - `1 SUBHASHINI D/O. MADAMNBATH SANKARAN & KALYANI, W/O. VIYYATH JANARDHANAN, P.O., KURUMBILAVU, KURUMBILAVU VILLAGE, THRISSUR DISTRICT. PIN- 680 564.` ``` 2PADMAVATHY D/O. MADAMBATH SANKARAN & KALYANI, W/O. KALAPUAKKAL VALSALAN, KARUVANNUR P.O. ETTUMUNA, THRISSUR DISTRICT, PIN- 680 711. ``` - `3 KOMALAVALLY D/O. MADAMBATH SANKARAN, & KALYANI, W/O. POOKODE SURENDRAN, PANANGAD POST, S.N .PURAM, KODUNGALLUR PIN-680 664.` - `4 BALAN DIED S/O. MADAMBATH KUNJIMAMA AND KALYANI, P.O. INCHAMUDI, INCHAMUDI VILLAGE, THRISSUR DISTRICT PIN- 680 564.` ``` -:2:- ``` ## `O.P.(C)No.2384/2016` - `5 RAVI RAVEENDRAN S/O. MADAMBATH KANJIMAMA AND KALYANI, P.O. KONATHUKKUNNU, KODUNGALLUR, THRISSUR PIN- 680 123.` - `6 SHANMUGHAN S/O. MADAMBATH SANKARAN AND KALYANI, P.O. KURUMBILAVU, THRISSUR DISTRICT, PIN- 680 564.` - `7 JOISON AGED 40 YEARS, S/O. FRANCIS, KURUTHUKULANGARA HOUSE, P.O. KURUMBILAVU, THRISSUR, PIN- 680 564.` - `8 K.C. MADHAVAN(EXPIRED) AGED 65 YEARS, S/O. KOLLAYIL CHATHU, P.O. KURUMBILAVU, THRISSUR, PIN- 680 564.` - `9 SIVARAMAN. M.K. AGED 77 YEARS, S/O. MACHINGAL KRISHNAN, P.O. KURUMBILAVU, THRISSUR, PIN- 680 564.` - `10 E.G.RAVINDRAN AGED 69 YEARS, S/O. EZHUVANPARAMBIL GOPALAN, P.O. KURUMBILAVU, THRISSUR, PIN- 680 564.` - `11 VASU(EXPIRED) AGED 63 YEARS, S/O. KOZHIPARAMBIL VELAYUDHAN, P.O. KURUMBILAVU, THRISSUR, PIN- 680 564.` - `12 ROSHAN AGED 63 YEARS` - `63 YEARS, S/O. CHERKKARA THANDAYAN SIDHARTHAN, P.O. KURUMBILAVU, THRISSUR, PIN- 680 564.` - `13 REMA W/O. LATE MADAMBATH BALAN, P.O.INCHAMUDI, INCHAMUDI VILLAGE, THRISSUR,PIN- 680 564.` - `14 ADDL.R14-GIRIJA AGED 55 YEARS,W/O LATE K C MADHAVAN, P.O KURUMBILAVU,THRISSUR. PIN-680564.` - `15 ADDL.R15- NAVEEN` ## `O.P.(C)No.2384/2016` ## `-:3:-` ``` AGED 35 YEARS,S/O LATE K C MADHAVAN, P.O KURUMBILAVU,THRISSUR. PIN-680564. ``` - `16 ADDL.R16- NANCY AGED 33 YEARS,D/O LATE K C MADHAVAN, P.O KURUMBILAVU,THRISSUR. PIN-680564.` - `17 ADDL.R17-NEENA AGED 25 YEARS,D/O LATE K C MADHAVAN, P.O KURUMBILAVU,THRISSUR. PIN-680564.` - `18 ADDL.R18-BHANUMATHII AGED 60 YEARS,W/O VASU, KOZHIPARAMBIL HOUSE, P.O.KURUMBILAVU,THRISSUR. PIN-680564.` - `19 ADDL. R19- SABU AGED 38 YEARS,S/O VASU, KOZHIPARAMBIL HOUSE, P.O.KURUMBILAVU,THRISSUR. PIN-680564.` - `20 ADDL.R20- SHENU AGED 34 YEARS,D/O VASU, KOZHIPARAMBIL HOUSE, P.O.KURUMBILAVU,THRISSUR. PIN-680564. (THE LEGAL HEIRS OF DECEASED R8 AND R11 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 14 TO 20 AS PER ORDER DATED 240.1.2017 IN IA NO. 1478/2016.)` ``` BY ADVS.SRI.A.RANJITH NARAYANAN SMT.A.SIMI SRI.M.ASHOK KINI SRI.THOMAS T.VARGHESE ``` ``` THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 28.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` O.P.(C)No.2384/2016 ``` ``` -:4:- ``` Dated this the 28[th] day of September,2022 ## **J U D G M E N T** Aggrieved by Ext.P3 order dated 27.08.2016 passed by the Court of the 2[nd] Additional Subordinate Judge, Thrissur, holding that the court fee paid by the plaintiffs under Section 37(2) of the Kerala Court Fees and Suit Valuation Act,1959, is correct, the defendants 3 to 5 have filed this original petition. The respondents 1 to 3 are the plaintiffs and the respondents 4 to 13 are the defendants 1, 2, 6 to 13 in the suit. 2. The petitioners' case, in a nutshell, relevant for the determination of the original petition is: the respondents 1 to 3 have filed the suit for a decree of partition and separate possession. The petitioners filed a written statement and an additional written statement, inter alia, contending that the valuation and court fee paid are incorrect. The court below considered Issue No.(6), which pertains to the payment ``` O.P.(C)No.2384/2016 ``` ``` -:5:- ``` of court fee, and has passed the impugned Ext.P3 order. Ext.P3 order is erroneous and illegal. Hence, the original petition. 3. Heard; Sri.M.R.Venugopal, the learned counsel appearing for the petitioners and Sri. A.Ranjith Narayanan, the learned counsel appearing for the respondents 1 to 3 and 6. 4. The point is whether there is any error or illegality in Ext.P3 order passed by the court below. 5. The crux of the dispute in Ext.P3 order relates to the payment of court fee by the respondents 1 to 3 on the plaint. The court below, after considering the pleadings and materials on record, arrived at a conclusion that the valuation of the plaint and the court fee paid by the respondents 1 to 3 are correct. 6. In **Ratnavarmaraja v. Vimala** [AIR 1961 SC 1299], the Hon'ble Supreme Court has emphatically held thus: ``` O.P.(C)No.2384/2016 ``` ``` -:6:- ``` “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 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 ``` O.P.(C)No.2384/2016 ``` ``` -:7:- ``` 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 subsection, 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 subject-matter 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 accordance with the court's decision and the deficit fee shall be paid....” [emphasis supplied] 7. 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]. 8. Therefore, going by the law laid down by the Hon’ble Supreme Court in the afore-cited decisions, the defendant has only the right to point out in the written statement that the suit is undervalued and no ``` O.P.(C)No.2384/2016 ``` ``` -:8:- ``` 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. In the light of the unequivocal enunciation of law by the Hon'ble Supreme Court in the aforecited decisions, I hold that the petitioners do not have a right to assail Ext.P3 order by invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India. The original petition fails and is hence dismissed. Sd/- ## **C.S.DIAS,JUDGE** DST/28.09.22 //True copy/ P.A.To Judge ``` O.P.(C)No.2384/2016 ``` ``` -:9:- ``` ## `APPENDIX` ``` PETITIONER EXHIBITS ``` ``` EXT. P1TRUE COPY OF THE PLAINT DATED 15.10.2010. EXT. P2TRUE COPY OF THE I.A.NO. 2628/2013 IN O.S. 266/2010 FOR AMENDMENT OF PLAIT. EXT. P3TRUE COPY OF ORDER DATED 27.08.2016 IN ISSUE NO. 6 IN O.S. NO. 266/2010. ``` ``` RESPONDENTS’ EXHIBITS: NIL ```