Elikkulam Grama Panchayath vs Sacariah Chacko on 25 August, 2009

Kerala High Court
Elikkulam Grama Panchayath vs Sacariah Chacko on 25 August, 2009
       

  

  

 
 
  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.
          -----------------------------
            W.P.(C).No.28112 OF 2008
           --------------------------
     Dated this the 25th day of August 2009
     -------------------------------------


                     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

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