IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 13855 of 2009(O)
1. POOLAKKAL KARIMBANAKKAL MUHAMMED
... Petitioner
2. IST PLAINTIFF'S BROTHER POOLAKKAL
Vs
1. POOLAKKAL KARIMBANAKKAL KHADER
... Respondent
2. IST DEFENDANTS W/O.UMMU BARKATH
3. IST PLAINFISS W/O.SAKHIRA, 32 YEARS
4. 2ND PLAINTIFFS W/O.SADIYA,
5. SAREENA, 35 YEARS
6. SAJITHA FATHIMA, 32 YEARS
7. AHAMMED KABEER, 28 YEARS
For Petitioner :SRI.V.N.RAMESAN NAMBISAN
For Respondent :SRI.M.SASINDRAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :20/07/2009
O R D E R
S.S.SATHEESACHANDRAN, J.
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W.P.(C). No. 13855 OF 2009
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Dated this the 20th day of July 2009.
JUDGMENT
The writ petition is filed seeking the following reliefs:-
i) issue a Writ of Certiorari or any other
appropriate order or direction and set aside the
order dated 06.04.2009 of the Court of the
Subordinate Judge, Manjeri in O.S.No.51/06;
ii) to declare that without recourse to the power
of the trial Court either under Section 18 or 19
of the Kerala Court Fees & Suit Valuation
Act, straightaway based on the contentions
in the written statement filed by the
respondents/defendants, order passed directing
to pay deficit Court fee that too without
ascertaining the market value and without
quantifying the Court fee is not correct in law;
and
iii) to grant such other and further reliefs to the
petitioners as the Court may consider just and
proper in the facts and circumstances of the
case.
2. Petitioners are the plaintiffs in O.S.No.51/2006 on the
file of the Sub Court Manjeri. The respondents are the
defendants in that Suit. Suit is for cancellation of a settlement
deed and consequencial reliefs. The defendants in their written
statement among other contentions disputed the valuation
shown in the plaint and the court fee paid and accordingly an
W.P.(C). No. 13855 OF 2009
2
issue was raised on that point. The issue so raised (issue No.4)
was heard preliminary and the court below passed Ext.P1 order
holding that the valuation shown in the plaint and court fee paid
are not correct. Petitioners / plaintiffs were directed to value the
suit in accordance with the market value of the property covered
by the deed sought to be cancelled and remit. the court fee there
of, failing which the plaint was ordered to be rejected.
Impeaching the propriety and correctness of that order
petitioners have filed the above petition invoking the supervisory
jurisdiction vested with this court under Article 227 of the
Constitution of India.
3. I heard the Counsel on both sides. The learned Counsel
for the petitioners submits that Ext.P1 order passed by the court
is unsustainable under law since the petitioners have not been
given an opportunity to take out a commission to ascertain the
market value of the property on the basis of which valuation is to
be shown and court fee to be paid for the suit claim, as
contemplated under the Court Fee and Suit Valuation Act, and so
much so setting aside that order the court below be directed to
appoint a commission for determining a market value of the
W.P.(C). No. 13855 OF 2009
3
property. The learned Counsel for the respondents has no
objection to the request made as above. A division bench of this
Court in Pachayammal and others v. Dwaraswamy Pillai and
others (ILR 2006(3) KER 336) has held in a suit of this nature for
cancellation of a deed and other documents which purports or
operates to create, assign, limit or extinguish right or title in
respect of immovable property, suit valuation under Section 40
of the Court Fees Act should be based on the market value of the
property, for which document was executed on the date of filing
of suit. Admittedly, the petitioners has valued the suit on the
consideration shown in the deed which is sought to be cancelled
and not with respect to the market value of the property covered
by the deed on the date of the filing of the Suit. So much so
Ext.P1 order passed by this Court that valuation shown and court
fee paid on the plaint are not correct, cannot be found fault with.
However, there is some force in the grievance canvassed by the
learned counsel for the petitioners that to resolve the disputed
question relating to valuation for the purpose of determining the
market value of the property, the aid of the court by appointing
an Advocate Commissioner is necessary. The court below shall
W.P.(C). No. 13855 OF 2009
4
appoint an advocate commission to determine the market value
of the property and on the basis of such report and the light of
the objections thereto if any, by both sides, it shall pass
appropriate orders on question of valuation and court fee.
Plaintiff shall pay the batta for taking out a Commission, and
once an order is passed by the Court, it shall file a proper
valuation statement and amend the plaint accordingly and pay
the court fee as fixed by the Court. Ext.P1 order to the extent
that the plaint will be rejected if deficit court fee is not paid on
or before the date fixed by the court below shall stand modified
subject to the observations made above. Writ petition is closed
as indicated above. Hand over a copy of the judgment to the
Counsel on both sides on usual terms.
S.S.SATHEESACHANDRAN
JUDGE
kkms/