K.C.Jacob vs K.C.Tomy on 16 January, 2009

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

Tr.P(C).No. 29 of 2009()


1. K.C.JACOB, S/O.LATE KALARICKAL CHACKO,
                      ...  Petitioner

                        Vs



1. K.C.TOMY, S/O.LATE KALARICKAL CHACKO,
                       ...       Respondent

                For Petitioner  :SRI.JOSHI N.THOMAS

                For Respondent  : No Appearance

The Hon'ble MR. Justice K.P.BALACHANDRAN

 Dated :16/01/2009

 O R D E R
               K.P. Balachandran, J.
            --------------------------
               Tr.P.(C)No.29 of 2009
            --------------------------

                       ORDER

Petitioner is the first defendant in O.S.No.

74/07 on the file of the Sub Court, Kochi. The

grievance of the petitioner is that the Sub Judge,

Kochi is taking a partisan attitude and that

therefore, O.S.No.74/07 aforesaid be transferred to

some other court. The reasons submitted by the

learned counsel for the petitioner are that though

the plaintiff and the defendants filed draft issues

in the suit, the court accepted only the issues

suggested by the plaintiff; that the petitioner

moved I.A.No.622/08 to consider the draft issues

submitted by him as well and that the learned Sub

Judge, vide Annexure-V order, dismissed the said

application holding that it is not maintainable,

since she has gone through the pleadings of either

side and also through the draft issues submitted by

both sides and accordingly raised the issues.

2. The above order was assailed by the

petitioner before this Court filing W.P.(C)

TPC 29/09 2

No.15792/08 and this Court, vide Annexure-VI

judgment, disposed of the writ petition observing

that the fact that either plaintiff has filed a

draft issue or the defendants have filed, does not

mean that the court has to accept the same; that it

is for the court to frame the material issues

relevant and necessary for disposing of the case

based on the pleadings and therefore, there is no

reason to interfere with the issues framed by the

trial court; that however, in I.A.No.622/08, there

was no specific prayer to frame any particular

issue and there is no reason to interfere with the

said order and that if the grievance of the

petitioner is that any particular issue, which

arises on the pleadings and necessary to be decided

for disposing of the suit, is not framed,

petitioner is at liberty file a petition

specifically requesting the court to frame that

issue as an additional issue and that the court

shall consider the petition on merits and pass

appropriate orders.

TPC 29/09 3

3. Pursuant to the disposal of the above writ

petition vide Annexure-VI judgment, petitioner

moved Annexure-VII application (I.A.No.876/08)

praying for an additional issue being raised to the

following effect:

“Whether the court fee paid is sufficient?”

Obviously, the said issue is irrelevant for the

reason that in a suit valued under Section 37(2) of

the Kerala Court Fees and Suit Valuation Act

(hereinafter referred to as ‘the Act’) court fee

payable has been paid. The real issue should have

been whether the suit has been properly valued and

court fee paid. However, the court considered the

said issue and rendered Annexure-X order holding

that the court fee paid under Section 37(2) of the

Act is sufficient and proper, consequent on the

observation made by the court below that though the

first defendant argued that the court fee has to be

paid under Section 37(1) of the Act, it is the

averments in the plaint that has to be the basis

TPC 29/09 4

for valuation of the suit for the purpose of

payment of court fee in a suit for partition and

not the averments in the written statement and that

the plaint averments do not indicate that the

plaintiff has been excluded from possession. The

finding rendered by the court below cannot be

viewed as an order passed taking any partisan

attitude. In the nature of the issue that was

raised as desired by the petitioner, it was

sufficient for the court to say that the court fee

paid under Section 37(2) of the Act is sufficient

without observing anything about the valuation.

Thus, the petitioner also committed errors and

there is no meaning in raising a complaint against

the officer concerned. There is no merit in this

transfer petition and the transfer has been moved

on account of misunderstanding of the party or the

counsel as regards position of law.

This transfer petition is dismissed.

16th January, 2009 (K.P.Balachandran, Judge)
tkv