IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 28112 of 2008(V)
1. ELIKKULAM GRAMA PANCHAYATH
... Petitioner
Vs
1. SACARIAH CHACKO, VALAYATHIL,
... Respondent
2. THOMAS, VALAYATHIL,
3. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.M.NARENDRA KUMAR
For Respondent :SRI.LIJI.J.VADAKEDOM
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :25/08/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C).No.28112 OF 2008
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Dated this the 25th day of August 2009
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JUDGMENT
The writ petition is filed seeking the
following reliefs.
i) Issue a writ of certiorari or other
appropriate writ, order or direction calling for
the records leading to Ext.P3 and quash the same as
illegal.
ii) Grant such other reliefs which this
Hon’ble Court deems fit and necessary in the facts
and circumstances of the case.
2. Petitioner is the defendant in O.S No.
25 of 2007 on the file of the Munsiff Court,
Kanjirappally. Suit is one for declaration of
W.P.(C).No.28112 OF 2008 Page numbers
plaintiff’s title over plaint schedule property
item No.2 and also the timber items scheduled as
item No.3 in the plaint. Plaintiff claimed title
over item No.2 property as having perfected title
by adverse possession. Some of the trees situate
in that property were cut down by the plaintiff,
and first defendant, the local authority resisted
it contending that the land and timber belong to
the panchayat. Suit claim was resisted by filing a
written statement. The first defendant, local
authority, moved two applications, one challenging
the maintainability of the suit on the ground that
it is not properly valued and court fee paid
insufficient, and the other, to remove the case
from the list. Both applications were dismissed by
the court below vide Ext.P3 order. Propriety and
correctness of Ext.P3 order is challenged in the
writ petition invoking the supervisory jurisdiction
vested with this court under Article 227 of the
Constitution of India.
W.P.(C).No.28112 OF 2008 Page numbers
3. I heard the counsel on both sides.
Having regard to the submissions made and taking
note of the facts and circumstances presented, I
find no interference with Ext.P3 order is called
for. Maintainability of the suit is challenged
only on the ground that valuation made in the
plaint is incorrect and the court fee paid
inadequate. The timber items which are scheduled
as item No.3 in the plaint, during the pendency of
the suit were sold in court auction and admittedly
it fetched a higher price than the value for those
items shown in the plaint. That appears to be the
reason why the petition was filed by the first
defendant contending the suit is not maintainable
for the reason aforesaid. It is submitted that the
first defendant in his written statement has not
raised any challenge that the valuation made in the
plaint is incorrect and the court fee paid
inadequate. Any question as to valuation and
sufficiency of court fee has to be raised in the
written statement. If no such challenge is raised
in the written statement, it is not open to the
W.P.(C).No.28112 OF 2008 Page numbers
defendants to canvass such a challenge at a later
stage. Further more, even if the timber items have
been sold for a higher price in public auction, it
does not postulate the valuation made in the plaint
is not correct. A willing purchaser may pay more
price for the timber items depending up on his
need for those items. It is seen that the
application challenging the maintainability of the
suit on the ground that valuation made in the
plaint as not correct and court fee paid inadequate
was raised only after the case came up in the list
for trial. Dismissal of the petition so moved
challenging the maintainability, by the learned
Munsiff, is only proper and correct. Writ petition
lacks merit, and it is dismissed.
Sd/-
S.S.SATHEESACHANDRAN,
JUDGE
//TRUE COPY//
P.A TO JUDGE
vdv
