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2011 DIGILAW 1027 (KER)

Rasily v. Seema Khaise

2011-10-03

THOMAS P.JOSEPH

body2011
JUDGMENT : This Original Petition is filed by defendants 1 and 2 in O.S. No.169 of 2011 of the court of learned Sub Judge, Pala aggrieved by the direction issued by the learned Sub Judge in Ext.P-3 - I.A. No.1550 of 2011 that the said application will be considered after all the defendants entered appearance and filed written statement. 2. First respondent sued petitioners and other defendants for partition and separate possession of 7/72 shares over 13 items of property referred to in plaint A to C schedules. Petitioners (who are said to have filed written statement) filed Ext.P-3, application - I.A. No.1550 of 2011 to reject the plaint under R.11 of O. VII of the Civil Procedure Code (for short, "the Code") as court fee paid is not correct. First respondent filed Ext.P-4, objection. On Ext.P-3, application learned Sub Judge is said to have directed that the same will be considered on other defendants entering appearance and filing written statement. The said order (copy of the order is not produced) is under challenge. 3. Learned counsel for petitioners contended that under Section 12 of the Kerala Court Fees and Suits Valuation Act (for, short, "the Act") in every suit instituted in any court other than the High Court the court shall before ordering the plaint to be registered decide on material allegations contained in the plaint and all the materials and statement if any filed under Section 10 the proper court fee payable. Reliance is placed on sub-section (2) of the said provision which states that 'any' defendant may file written statement before the first hearing of the suit or before evidence is recorded on merit of the claim plead that subject matter of the suit has not been properly valued. Learned counsel has placed reliance on the decision in Joseph v. Sara Thomas ( 1996 (2) KLT 851 ), P.P.S. Pillai v. Catholic Syrian Bank ( 2000 (3) KLT 629 ) and Sham Lal v. Atmanand Jain Sabha (Regd.), Dal Bazar (AIR 19S7 SC 197) to contend that even based on the written statement filed by petitioners the court was obliged to decide question of court fee. Learned counsel argued that the expression "first hearing" does not mean the date fixed for return of summons but it is the day when the court applied its mind to the case. 4. Learned counsel argued that the expression "first hearing" does not mean the date fixed for return of summons but it is the day when the court applied its mind to the case. 4. That is the principle laid down by the Supreme Court in Sham Lal v. Atmanand Jain Sabha (Regd.) Dal Bazar referred to above. Now the question is whether even before other defendants appeared and filed written statement, or are declared absent, it was possible for the learned Judge to consider the question regarding valuation of plaint and payment court fee. 5. In Joseph v. Sara Thomas the scope of application of Section 12(1) and (2) of the Act was referred to. No doubt, it is stated that under Section 12(2) of the Act 'any' defendant may in the written statement filed before the first hearing of the suit or as otherwise referred in sub-section (2) of Section 12 of the Act plead that the subject matter of the suit has not been properly valued or court fee paid is not sufficient. In P.P.S. Pillai v. Catholic Syrian Bank it is observed in paragraph 6 that on the scheme of sub-ss.(1) and (2) of Section 12 once the defendant has raised a question of undervaluation of the plaint in the written statement originally filed and the court has raised an issue on that question, defendant can insist that the issue be heard before the case taken for evidence. 6. The above decisions would only go to show that even if one of the defendants raised objection regarding valuation of the subject matter of the suit and payment of court fee based on which an issue is framed, that issue is to be decided. But based on the written statement filed by petitioners/defendants 1 and 2 alone, when other defendants are yet to be served, appear in court and file written statement or are to be declared absent after being duly served, there cannot be framing of an issue. To frame an issue under R.1 of O.XIV of the Code, the preliminary steps should be over. Here it is submitted that petitioners/defendants 1 and 2 alone have appeared and other defendants are yet to appear. In other words other defendants are either to appear and file written statement or are to be declared absent. To frame an issue under R.1 of O.XIV of the Code, the preliminary steps should be over. Here it is submitted that petitioners/defendants 1 and 2 alone have appeared and other defendants are yet to appear. In other words other defendants are either to appear and file written statement or are to be declared absent. Then only question of framing an issue based on the written statement filed by the petitioners would arise. 7. I do not forget that there are different stages of considering proper valuation of subject matter and court fee paid. One is before the court registers the plaint (under O.VII R. 11 of the Code) and the next is after the suit is registered and after issue has been raised on valuation and court fee. The third is when there is an objection raised by the court fee examiner under Section 18 of the Act. In the present case the suit has already been registered. No doubt even after registration of the case it is within the power of the court to invoke R. 11 of O.VII of the Code if circumstances warranted that but as aforesaid it is not merely on the contention of one or some of the defendants when other defendants are yet to enter appearance and put in their pleadings. 8. As aforesaid other defendants have not appeared or declared absent. In that situation learned Sub Judge was correct in directing that the application will be considered after the remaining defendants appeared and filed written statement if any or declared absent and an issue based on the plea of petitioners is raised in view of the contentions which petitioners claim to have raised in the written statement. Original Petition is dismissed.