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2009 DIGILAW 474 (KER)

K. Aravindakshan v. Balakrishna Menon

2009-06-12

S.S.SATHEESACHANDRAN

body2009
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 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. 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. 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 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. 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 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 Act. 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 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 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. 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 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 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 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.