IN THE HIGH COURT OF KERALA AT ERNAKULAM
OP(C).No. 338 of 2010(O)
1. SHERLY VARGHESE,D/O.C.VARGHESE,VATTAVILA
... Petitioner
2. SHAJAN VARGHESE,S/O.C.VARGHESE,VATTAVILA
3. SHOBA VARGHESE,D/O.C.VARGHESE,VATTAVILA
4. SHEEBA VARGHESE,D/O.C.VARGHESE,VATTAVILA
5. RIBI VARGHESE,VATTAVILA
Vs
1. BABYKUTTY,D/O.CHERIYAN,
... Respondent
2. LEELAMMA,D/O.CHERIYAN,
For Petitioner :SRI.B.MOHANLAL
For Respondent : No Appearance
The Hon'ble MR. Justice THOMAS P.JOSEPH
Dated :20/10/2010
O R D E R
THOMAS P. JOSEPH, J.
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O.P.(C) No.338 of 2010
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Dated this the 20th day of October, 2010.
JUDGMENT
Petitioners before me are defendant Nos.2 and 3 and additional defendant
Nos.4 to 6 in O.S.No.88 of 2006 of the court of learned Munsiff-Magistrate,
South Paravoor. As amended the suit is for partition and separate possession of
2/3 shares claimed by the respondents and for other reliefs. Respondents
alleged that they are in joint possession of the suit property along with
petitioners and that their demand for partition was negatived by the petitioners.
Thereon they sued for partition and separate possession of their 2/3 shares and
for other reliefs. They contended that a release deed allegedly executed by
them as if they had released their right over 2/3 shares in favour of the father of
petitioner Nos.1 and 2 is relied upon by petitioners but that document is sham,
forged and fraudulently created and that they have not executed any such
document relinquishing their co-ownership right in the suit property. They
claimed that documents based on the said release deed are also fraudulent
and not binding on them. As per the amended plaint respondents have sought
for a declaration of their right over the suit property and paid court fee on half of
market value of the property under Section 25(b) of the Kerala Court Fees and
Suits Valuation Act (for short, “the Act”) and for relief of partition fixed court fee
under Section 37 (without mentioning the Sub-section) of the Act is also paid.
According to the learned counsel, respondents are liable to pay court fee under
Section 40 of the Act on the amount of consideration stated in the release deed
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and other documents under challenge. Learned counsel invited my attention to
the relief portion in the plaint. Contending that court fee paid is not proper and
that the suit is barred by limitation petitioners filed I.A.No.715 of 2010 to dismiss
the suit. That application was dismissed by the learned Munsiff-Magistrate as
per Ext.P6, order.
2. So far as the necessity to pay court fee under Section 40 of the Act
is concerned, though in the relief portion a prayer to cancel that document is also
made, rest of the prayer is a declaration that the said document is sham, void
and inoperative on the allegation that respondents have not executed such
document. Hence setting aside the document is not required. Respondent had
paid court fee on half of the market value for the relief of declaration which is
sufficient.
3. After arguing the matter for some time learned counsel has
requested that he is not pursuing the contentions raised in this Writ Petition
against the impugned order (Ext.P6) and that the learned Munsiff-Magistrate
may be directed to expedite trial and disposal of the suit since it is of the year
2006. Learned counsel states that pre-trial steps are over.
4. Having regard to the circumstances stated by learned counsel,
learned Munsiff-Magistrate, South Paravoor is directed to expedite trial and
disposal of the suit if pre-trial steps are over. I make it clear that it will be open
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to the petitioners to challenge correctness of Ext.P6, order in appeal in case the
decision in the suit goes against them and if they are otherwise entitled to do so
as provided under law.
Original Petition is disposed of with the above directions.
THOMAS P.JOSEPH,
Judge.
cks