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2005 DIGILAW 45 (KER)

Cherootty, O. T. v. Purushothaman

2005-01-24

K.THANKAPPAN

body2005
Judgment :- Two questions raised in this revision petition are: (1) Whether under the provisions of the Kerala Court Fees and Suits Valuation Act, 1959 (hereinafter referred to as 'the Act') the Court itself has got power to determine the court fee after the closure of evidence or completion of the pleadings; and (2) whether the value shown in the suit is on the basis of the annual income of the property as per Order VII, Rule 11(b) of the Code of Civil Procedure read with Section 7 of the Act. 2. Learned counsel for the petitioners submits that as per the decision in Janakiamma v. Krishnan (1978 K.L.T. 463) the Court can determine the court fee only at seven stages mentioned in that judgment All these stages are prior to the closing of evidence. Hence after the closure of evidence the Court has no power to determine, the court fee. It is further contended that under Sections 12, 13 and 18 of the Act the Court shall not suo motu determine the court fee to be payable by the plaintiff unless it is raised by the other side as a preliminary issue. 3. I have heard the learned Government Pleader also. Learned Government Pleader submits that as per the provisions of the Act it is the duty of the Court to see that the court fee shall not be attributed on the reason of non-mentioning by the defendants or non-framing of any preliminary issue in the suit itself. The judgment in We-Build Pvt. Ltd. v. Kamaleswaran 1981 K.L.T. 773 is very relevant in this aspect. In paragraphs 14 and 15 of the above judgment the Division Bench held as follows: "14. Even assuming that such a question is an issue framed under Order XIV, Rule 1(5), in view of the provision in S.12 (2) of the Court Fees Act read with Order VII, Rule 11(b) and (c), it is an issue the finding whereon, may in some cases, if the same is against the plaintiff result in the rejection of the plaint and not in the dismissal of the suit, as already stated. Under Order XIV, Rule 5 the court may at any time before passing a decree strike out any issue that may appear to it to be wrongly framed or introduced. Under Order XIV, Rule 5 the court may at any time before passing a decree strike out any issue that may appear to it to be wrongly framed or introduced. An issue, the finding whereon will not be helpful to decide the suit one way or the other, is an unnecessary issue and therefore under Order XIV, Rule 5 it can be deleted. Shortly put, the determination of the question of court fees is called for not because such determination is necessary to decide the suit, but to ensure that 'revenue is collected for the benefit of the State' and the Court Fees Act obliges the court to see to such collection and enables the defendant to assist the court in that function. 15. In view of what is said above, the court has to determine the question of correct court fee at the stages stated in the Kerala Court Fees Act, 1959 and in the manner specified therein. Under S.12(2) of that Act, where a defendant raises such a question in the manner mentioned in that provision the court is required to decide the same before evidence is recorded affecting such defendant on the merits of the claim. A defendant, who chooses to assist the court in the matter of collection of the correct court fees by raising that question, ought also alert the court of that question raised by him at the proper stage at which the court is required by the statute to determine it. If he is not prompt in that, it only means that he does not go all the way to assist the court in determining the correct court fee leviable on the plaint and the court would be justified in treating such a question as one not arising in the case and in deleting it on that ground." 4. From a reading of the above judgment and the provisions of the Act this Court is of the view that the Court has got an obligation to see that no relief can be granted without any revenue for that and it is further to hold that the Court has got a duty as cast on it by the provisions of the Act to see that correct court fee should be paid by the parties. There cannot be any escape from court fee. There cannot be any escape from court fee. According to this Court, court fee can be determined by the Court at any stage even after the completion of evidence. 5. The second question raised by the learned counsel is whether the direction given by the court below to amend the suit on the basis of the market value is correct or not. It is not based on the provisions of Section 7 of the Act. According to the counsel, Section 7 of the Act gives the mode or grounds on which the market value of the property can be fixed. From a reading of the judgment under challenge this court is of the view that the Court has only directed that the plaint may be amended under Order VII, Rule 11(b) of the Code of Civil Procedure and to show the correct valuation of the suit. The court below had not given any direction that it shall not be on the basis of Section 7 of the Act. That is a matter to be cared by the plaintiff at the time of amendment of the suit as ordered by the court below. Only on this reason this Court is not proposed to interfere with the order under challenge. It is made clear that the amendment of the plaint shall be on the basis of the market value to be fixed under Section 7 of the Act. With the above observations, the Civil Revision Petition is disposed of.