IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 3873 of 2010(O)
1. VALSAMMA JOHN, W/O.LATE JOHN THOMAS,
... Petitioner
2. JINNY J.GEORGE, S/O.LATE JOHN THOMAS,
3. JUBIN J.GEORGE, S/O.LATE JOHN THOMAS,
4. VARGHESE P.THOMAS,
5. THOMAS GEORGE,
Vs
1. JOY THOMAS, THOTTUNGAL HOUSE,
... Respondent
For Petitioner :SRI.GEORGE CHERIAN (THIRUVALLA)
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :08/02/2010
O R D E R
V. RAMKUMAR, J.
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W.P.(c).No.3873 of 2010
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Dated this the 8th day of February, 2010
JUDGMENT
Defendants 1 to 5 in O.S.No.583 of 2006 on the file of
the Munsiff’s Court, Thiruvalla are the writ petitioners. The
said suit instituted by the respondent herein was one for
cancellation of two documents and for partition and
separate possession of his share over one item of immovable
property. The petitioners, inter alia, opposing the suit on
various goods including one of undervaluation and partial
partition, contended that there was one more item of
property to be included in the plaint in the event of
partition. Pending suit the plaintiff filed I.A.No.912 of 2009
to delete the prayer for cancellation of the documents. The
petitioners persisted the their claim for undervaluation and
they filed I.A.No.1574 of 2008 to consider the issue
regarding valuation as a preliminary decree. According to
the petitioners even as per the documents produced by the
W.P.(c)No.3873 of 2010
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plaintiff himself the valuation for the suit property would
exceed Rupees one lakh and would go beyond the pecuniary
limit of the learned Munsiff. The court below, however,
issued a Commission to assess the market value of the
property as on the date of the suit and directed payment of
a sum of Rs.1,200/- as Commission batta.
2. According to the petitioners they are not bound to
defray the expenses for the Commission and that even for
deciding the issue as to whether the suit is beyond the
pecuniary limit of the Court, there was no need to issue a
Commission by the court below and even if the Commission
was to be issued the petitioners were not liable to pay the
batta.
3. Having raised a plea of undervaluation and having
sought that the issue to be considered as a preliminary
issue the court below had to decide the question of market
value of the property. The safest method to assess the
market value of the property is by appointing a Commission.
W.P.(c)No.3873 of 2010
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The court below therefore ordered to appoint an Advocate
Commissioner to ascertain the market value of the plaint
schedule property as on the date of the suit. The
Commission batta will have be borne by the plaintiff. The
question as to whether the suit is bad for partial partition
will have to be decided in the suit. And in case the court
decides the valuation for the purpose of jurisdiction and in
case the valuation exceeds the pecuniary limits of the
Munsiff, it goes without saying that the suit will have to be
returned for presentation before the proper court and in
that event the proper court will have to go into the defence
contentions including the defence of partial partition put
forward by the petitioners.
Clarifying this position this writ petition is disposed of
as above.
Dated this the 8th day of February, 2010.
V. RAMKUMAR, JUDGE
sj