K.Balakrishnan vs T.O.Cheruvathoor on 11 October, 2010

       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 36514 of 2009(O)


1. K.BALAKRISHNAN, MURUKA NIVAS,
                      ...  Petitioner

                        Vs



1. T.O.CHERUVATHOOR, TC 24/444,
                       ...       Respondent

                For Petitioner  :SRI.V.V.ASOKAN

                For Respondent  :SRI.V.SURESH

The Hon'ble MR. Justice HARUN-UL-RASHID

 Dated :11/10/2010

 O R D E R
                        HARUN-UL-RASHID,J.
              -------------------------------
                      W.P.(C). NO.36514 OF 2009
              -------------------------------
              DATED THIS THE 11TH DAY OF OCTOBER, 2010

                               JUDGMENT

Petitioner herein is the defendant in O.S.No.402/08 on

the file of the II Additional Munsiff’s Court, Thiruvananthapuram.

The suit was filed for declaration of title and for consequential

injunction. Defendant filed written statement and also counter

claim praying to issue a mandatory injunction directing the plaintiff

to vacate from the ground floor of the building. In Ext.P6 written

statement it is inter alia contended that the plaintiff has to value the

suit on the market value of the property, as the value claimed is one

for declaration of title. Ext.P5 is the copy of the plaint. In

paragraph 21 the plaintiff valued A prayer for declaration under

Section 25 (b) of the Kerala Court Fees and Suits Valuation Act at

Rs.1,000/- and the fee payable is Rs.40. It is said that B prayer is

consequential.

2. The specific contention of the petitioner is that

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the valuation of the plaint schedule property is not correct. In the

written statement and the counter claim it is also contended that the

plaintiff has no access to the first floor of the plaint schedule

building. In the said context the defendant filed I.A.No.4527/09

under Order XXVI Rule 9 C.P.C. for site inspection. The matters

to be ascertained are market value of the plaint schedule property,

approximate area, ground floor, first floor, mesne profits of the

plaint schedule property, description about the entry to the first

floor of the plaint schedule building etc. Ext.P9 is the order passed

by the II Additional Munsiff’s Court, Thiruvananthapuram in the

said IA. The court dismissed the application stating that the ex parte

commission report is already before the court ascertaining all the

points in the present petition and that a detailed report of the

building was submitted by the Advocate Commissioner and

therefore there is no need to appoint an Advocate Commissioner to

assess the market value of the building and to ascertain the

approximate area and plan details of the first floor. It is further

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stated that the said facts are not necessary for the adjudication of

the suit or counter claim and therefore the petition was dismissed.

3. I have perused the relevant paragraphs in the

plaint. The suit is for declaration of title. The valuation portion

shows that the plaintiff valued the suit at Rs.1,000/-. The valuation

is under Section 25(b) of the Kerala Court Fees and Suits Valuation

Act. The the prayer in the suit is for declaration and possession of

the property. It is contended by the defendant that since the suit

is not valued properly, it is necessary to assess the market value of

the property. It is also stated that in the earlier Commission report

there is no assessment of the value of the property. The

ascertainment of market value of the property under Section 25(b)

of the Act is necessary for the purpose of deciding as to whether

the proper court fee has been paid or not. From the valuation of the

plaint, it is seen that the plaintiff has not resorted to value the plaint

on the basis of the market value of the property. In the

circumstances, there is no justification for dismissing the

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application for commission. Apart from the ascertainment of the

market value, certain other matters which are also necessary for the

purpose of deciding the proper court fees payable. It may not be

correct to say that all the details ascertained by the defendant are

contained in the commissioner’ report already filed.

4. In the result, Ext.9 order passed by the II

Additional Munsiff, Thiruvananthapuram is set aside. The

application for issuance of a commission is allowed. The II

Additiohnal Munsiff’s Court, Thiruvananthapuram is directed to

depute an Advocate Commissioner for the purpose of assessment as

prayed for in the IA.

Writ Petition is allowed.

HARUN-UL-RASHID,
JUDGE.

kcv.