IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 3748 of 2009(U)
1. K.ARAVINDAKSHAN, S/O.KUMARAN, AGED 51,
... Petitioner
Vs
1. BALAKRISHNA MENON, S/O.C.KRISHNAN NAIR,
... Respondent
For Petitioner :SRI.S.SREEKUMAR
For Respondent :SRI.ABRAHAM K.JOHN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :12/06/2009
O R D E R
S.S. SATHEESACHANDRAN, J.
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W.P.(C) No.3748 of 2009
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Dated: 12th June, 2009
JUDGMENT
The Writ Petition is filed under Article 227 of the Constitution of
India seeking the following reliefs:
1. To set aside Ext.P6 order in I.A.9132 of 2008 in O.S.No.5 of 2008
and allow Ext.P3 I.A.No.9132 of 2008 in O.S.No.5 of 2008 of 1st
Additional Sub Court, Ernakulam.
2. To issue such other writ order or direction as may be necessary in
the interest of justice.
Petitioner is the plaintiff in O.S.No.5/08 on the file of the Additional
Sub Court, Ernakulam. Suit was filed for a decree of permanent
prohibitory injunction restraining the defendants from trespassing
upon or committing waste and damages or interfering with the
peaceful possession and enjoyment of the plaintiff over the plaint
property having an extent of 8.361 cents comprising a two storied
building in Survey Nos.861/4 and 862 of Elamkulam Village. An
application for amendment was moved by the plaintiff alleging that
the property had been trespassed upon by the defendant and reduced
into his possession after institution of the suit and, therefore, the
relief of recovery of possession from the defendant has been
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warranted. Along with the amendment application, the valuation for
the amended relief and the court fee payable thereof was also shown
by the plaintiff. The amendment was resisted by the defendant filing
objections, mainly contending that the valuation shown was incorrect
and the property should be valued on its market value as on the date
of the suit. The learned Sub Judge, after examining the materials
produced by the plaintiff, arriving at a conclusion that the market
value given by the plaintiff is incorrect directed for filing a fresh
valuation statement. Ext.P5 is the valuation statement filed by the
plaintiff in compliance of the order of the court, in which he has
shown the centage value of the property at Rs.25,000/-. Not being
satisfied with the centage value shown and holding that it is even
much less than the consideration shown in the sale deed of the
plaintiff, learned Sub Judge formed a conclusion that the valuation of
the subject matter shown by the plaintiff was incorrect and therefore
the application for amendment was not allowable. In that view of the
matter, the valuation for amendment was dismissed. Ext.P6 is copy of
that order. Ext.P6 order is challenged in the Writ Petition as illegal
and the petitioner seeks to set aside that order invoking the
supervisory jurisdiction vested with this court.
W.P.C.No.3748/09 – 3 –
2. I heard the counsel on both sides. Inviting my attention to
Ext.P6 order impugned in the Writ Petition, learned counsel for the
petitioner submitted that the order is clearly illegal as the amended
application itself had been dismissed without conducting an enquiry
as to the correct valuation of the property. If the valuation stated by
the plaintiff was found unacceptable for any reason whatsoever,
according to the learned counsel, the court should have conducted an
enquiry as to what exactly the valuation of the property to determine
the court fee payable. Without doing so, it is submitted, holding that
the valuation stated is incorrect, the amendment application itself
was dismissed by the learned Sub Judge, which is a procedure not
sanctioned by law. On the other hand, learned counsel appearing for
the respondent contended that no interference with Ext.P6 order is
warranted as the valuation was not corrected by the plaintiff even
after an opportunity was extended by the court. In respect of the
very same subject matter, the defendant had filed another suit as
O.S.No.1085/07 for a decree for specific performance and the
agreement for sale therein was over Rs.33 lakhs which reflected the
correct market value of the property at the time of institution of the
suit, according to the learned counsel. Plaintiff should have valued the
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property in accordance with the market value and his failure to do so
even after providing an opportunity entailed the dismissal of the
amendment application by the court below under Ext.P6 order and it
is not liable to be interfered with in exercise of the supervisory
jurisdiction by this court, is the submission of the learned counsel for
the defendant.
3. The various stages at which the question of sufficiency of
court fee, as to whether proper fee has been paid, can be considered
are covered by Sections 12, 13 and 18 of the Court Fees Act. When a
suit is instituted in any court other than the High Court before
ordering the plaint to be registered, the first stage of examination of
sufficiency of court fee arises for consideration. A decision as to
whether proper fee has been made on the plaint has to be arrived by
the court on the allegations contained in the plaint and also on the
materials covered by the statement, if any, filed under Section 10 of
the Court Fees Act. The decision so formed by the court is subject to
review and correction later as indicated in succeeding sub sections
(2) and (3) of Section 12 of the Court Fees Act. The second stage of
enquiry emerges for consideration if a contention is taken as to the
insufficiency of court fee by any of the defendants in his written
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statement before the first hearing of the suit or before evidence is
recorded on the merits of the suit claim. If such a plea of insufficiency
of court fee is raised, it has to be heard and disposed before evidence
is recorded. In case, a decision is arrived in the suit that proper court
fee has not been paid, plaintiff shall be given an opportunity to
amend the suit in accordance with the court’s decision to pay the
deficit court fee within the time fixed. In the event of noncompliance
of the order within the time given it will lead to rejection of the plaint
and such other order as to cost as the court deem fit and proper. The
third stage arises if any one is added as a defendant after framing of
issues provided such impleadment is not as a successor or
representative of interest of a party already on record and who had
the opportunity to raise the question earlier. Such a person
impleaded as an additional defendant may with the permission of the
court raise a plea that proper court fee has not been paid or that the
fee paid has not been sufficient. Here also the court has to follow the
procedure indicated earlier and determine the sufficiency of the court
fee paid before recording the evidence of such additional defendant
on the merits of the claim. The above three stages are covered by
various sub-sections under Section 12 of the Court Fees
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Act. The 4th stage arises when a party becomes liable to pay
additional fee by raising of an issue framed in the suit. That is also to
be resolved following the procedure indicated earlier as covered
under Section 12 of the Court Fees Act. The 5th stage emerges in a
situation where a further enquiry on the sufficiency of the court fee
by the court is necessitated on receipt of the report of the Court Fee
Examiner deputed by the High Court under Section 18(1) of the Court
Fees Act. When such a report is received from the Court Fee
Examiner, after inspecting the records of the suit to examine the
correctness of the report made and orders passed with respect to the
sufficiency of the court fee, the court can review an earlier decision
given by the court on the same question and the decision then
formed by the court under Section 18(2) of the Court Fees Act would
be final so far as that court is concerned. The determination of the
sufficiency of the court fee and the decision as to the proper court fee
paid on the suit claim by the court at whatever stage it had been
arrived at, is subject to further scrutiny whenever the case comes up
before a court of appeal. Correctness of any order passed by the
lower court on the sufficiency of the court fee paid on the plaint or
any other proceeding can be examined by the court of appeal either
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of its own motion or on the application of any of the parties when the
case comes up for its consideration. Such a situation is covered by
Section 12(4) of the Court Fees Act.
4. I have adverted to the various stages as to when the
sufficiency of the court fee on a plaint or a proceeding can be
examined by a court with reference to the relevant provisions under
the Court Fees Act to point out that an enquiry as to whether proper
court fee on the claim can be proceed only if it forms part of the
pleadings in the case. When a plaintiff seeks for an amendment of his
plaint by moving an interlocutory application setting forth the
proposed amendment it is not proper or correct for the court to
examine whether the valuation calculated and the court fee on such
valuation under the proposed amendment are correct and sufficient.
That stage would arise for consideration only if the amendment is
allowed and incorporated in the plaint. Any challenge by the
defendant that the valuation set out in the proposed amendment as
regards the sufficiency of the court fee can be enquired into only if
the amendment is allowed and carried out in the plaint and not
before. In case, by the proposed amendment, a valuation is shown
which if the amendment is allowed, would take away the suit or
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proceeding out of the jurisdiction of the court in which the plaint was
initially filed, then if the amendment is allowed the enquiry on the
sufficiency of the court court fee can be done only by the competent
court to which the amended plaint returned is presented. In
considering the merit of the amendment application, the court is
concerned only with the question whether the proposed amendment
is necessary for the purpose of determining the real questions in
controversy between the parties. It is not open to the court to
determine in that enquiry whether the valuation of the suit and
sufficiency of court fee as shown by the plaintiff in his amendment
application is correct or not, but, among other circumstances
presented, it can be looked into only for the purpose whether the
proposed amendment is bonafide and necessary for resolving the
controversies arising for adjudication. Any enquiry by the court on
the amendment application itself as regards the sufficiency of the
court fee even before the amendment is allowed and carried out in
the plaint is not at all in consonance with the provisions in Courts
Fees Act as to how sufficiency of the court fee on a suit claim is to be
determined and further any such course is fraught with serious
consequences which may affect the substantive rights of the parties
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involved in the suit or proceedings. In K.S.E.B. v C.S.Company
(1996(2) KLT 532) while considering the effect of an amendment
under Order 6 Rule 17 of the C.P.C. which, if allowed, would take
away from a party which had accrued to him by lapse of time, it has
been observed that when amendment is to be allowed, the question
regarding payment of court fee also has to be reconsidered(para 15).
That was a case where computation of court fee on the basis of the
amendment demanded under the then existing Court Fees Act as on
the date of institution of the suit, which was long prior to the
amended provisions made in 1991. In the above decision, the
principles governing determination of court fee as per the provisions
of the Court Fees Act have not arisen for consideration before this
court and as such the decision is not an authority to hold that
determination of court fee has to be reckoned simultaneously with
the question whether the proposed amendment is allowable or not.
5. Ext.P6 order passed by the learned Sub Judge rejecting the
amendment application moved by the plaintiff solely for the reason
that the valuation of the subject matter for the purpose of the relief
shown was not correct, is unsustainable and it is liable to be set
aside. In the nature of the controversy arising for adjudication in the
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suit, proposed amendment made by the plaintiff to have the
additional relief of recovery of possession is found essential and
Ext.P3 application for amendment has only to be allowed. So,
reversing Ext.P6 order, Ext.P3 amendment application is allowed, but
subject to further enquiry suo moto or on the basis of any challenge
by the defendant in his additional written statement to the amended
plaint as regards the valuation shown by the plaintiff and sufficiency
of proper court fee on the relief claimed. The Writ Petition is disposed
as above.
srd S.S. SATHEESACHANDRAN, JUDGE
