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2012 DIGILAW 879 (KER)

Beena Roy v. Abdul Rahim

2012-09-19

A.V.RAMAKRISHNA PILLAI

body2012
JUDGMENT A.V. Ramakrishna Pillai, J. 1. The petitioner is the plaintiff in O.S. No. 458/2008 on the file of the Munsiff’s Court Alappuzha. In this petition, the petitioner is challenging the order of the learned Munsiff (dated 28.9.2010) directing amendment of the plaint valuation and payment of deficit court fee on the basis of the market value as contended by the defendant, who is the respondent herein. 2. The petitioner instituted the suit for declaration of his title to the plaint schedule property and also for recovery of possession, after removal of some unauthorised constructions said to have been made by the respondent. The plaint schedule property is described as a portion of C-schedule to a settlement deed, have in an extent of 1.75 Cents. The petitioner valued the suit under Section 25 (d) (ii) at Rs. 1,000/-and paid the court fee accordingly. The respondent objected to the same and produced Exts. B1 to B3 and contended that the market value of the plaint schedule property would be more than Rs. 3 lakhs per cent. The trial court relying on Exts.B1 to B3 and accepting the contention of the respondent, passed the impugned order under Section 7 of the Kerala Court Fees and Suits Valuation Act, 1959, (hereinafter referred to as, ‘the Act) finding that the suit is under valued and directing amendment of the plaint valuation in accordance with the market value and payment of deficit court fee before 15/10/2010. 3. Arguments have been heard. 4. Admittedly, the suit is for declaration of title and for recovery of possession. The subject matter of the suit is immovable property which is capable of valuation. The relevant provision under the Act is Section 25, which reads as follows:- “25. Suits for declaration.-In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under Section 26-(a) Where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the property or on [rupees one thousand], whichever is higher. (b) Where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property or on [rupees one thousand], whichever is higher. (b) Where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property or on [rupees one thousand], whichever is higher. (c) Where the prayer relates to the plaintiff’s exclusive right to use, sell, print or exhibit any mark, name, book, picture, design or other thing and is based on an infringement of such exclusive right, fee shall be computed on the amount at which the relief sought is valued in the plaint or on [rupees on thousand], whichever is higher; (d) In other cases- (i) Where the subject-matter of the suit is capable of valuation, fee shall be computed on the market value of the property, and (ii) Where the subject-matter of the suit is not capable of valuation, fee shall be computed on the amount at which the relief sought is valued in the plaint or on [rupees one thousand], whichever is higher.’’ 5. The petitioner valued the suit under Section 25 (d) (ii), which is obviously wrong. Hence, the finding to that extend in the impugned order is legally sustainable. However, the learned Munsiff erred in relaying on Exts.B1 to B3 documents to find that the suit is undervalued. Ext.B1 is a sale deed of 2008 by which, the petitioner had sold 4.25 cents of property to a third party for a sum of Rs1,36,000/-. Ext.B2 is a settlement deed of 1993. Ext.B3 is a copy of the proceedings of the Additional District Magistrate, Alappuzha, by which the fair value of the land comprised in Survey No.285/27-A2 of Aryad south village belonging to the respondent, was fixed at Rs.3,36,000/-per Are. As the plaint schedule property is comprised in the same survey number, the learned Munsiff found that the value of the plaint item would be Rs. 2,38,056/-as on 30/08/2010. It was also observed by the learned Munsiff that if market value of the plaint item is calculated on the basis of Ext.B1, it would be Rs. 56,000/-The learned Munsiff proceeded to observe that as the fair value of the plaint schedule property as on 30/08/2010 was Rs. 2,38,056/-, the market value of the plaint schedule property on the date of the suit could not be less than half of the said amount. 56,000/-The learned Munsiff proceeded to observe that as the fair value of the plaint schedule property as on 30/08/2010 was Rs. 2,38,056/-, the market value of the plaint schedule property on the date of the suit could not be less than half of the said amount. Thus, the petitioner was ordered to amend the valuation of the suit and to pay the deficit court fee. 6. The words “market value” appearing in Section 25(d) of the Act is the market value determined in accordance with Section 7 of the Act, which reads as follows: “7. Determination of market value.-(1) save as otherwise provided, where the fee payable under this Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint. (2) The market value of agricultural land in suits falling under Sections 25(a), 25(b), 27 (a), 29, 30, 37 (1), 37(3), 38, 45 or 48 shall be deemed to be ten times the annual gross profits of such land where it is capable of yielding annual profits minus the assessment if any made to the Government. (3) The market value of a building shall in cases where its rental value has been entered in the registers of any local authority, be ten times such rental value and in other cases the actual market value of the building as on the date of the plaint. (3A) The market value of any property other than agricultural land and building falling under sub-sections (2) and (3) shall be the value it will fetch on the date of institution of the suit. (4) Where the subject-matter of the suit is only a restricted or fractional interest in a property, the market value of the property shall be deemed to be the value of restricted value or fractional interest and the value of the restricted or fractional interest shall bear the same proportion to the market value of the absolute interest in such property as the net income derived by the owner of the restricted or fractional interest bears to the total net income from the property” 7. The fair value fixed by the R.D.O. under Section 45B of the Kerala Stamp Act for determining stamp duty has no relevance in determining the market value, for the purpose of valuation of the suit. The fair value fixed by the R.D.O. under Section 45B of the Kerala Stamp Act for determining stamp duty has no relevance in determining the market value, for the purpose of valuation of the suit. The learned Munsiff, instead of being carried away by Exts.B1 to B3, should have permitted the petitioner to amend the plaint valuation under Sections 7(2), 7(3) or 7(3A) of the Act, as the case may be. Hence, the grievance voiced by the petitioner against the impugned order is genuine. 8. During the course of the argument, it was brought to my notice by the learned counsel for the petitioner that the plaint was subsequently rejected under Order VII Rule 11 CPC on account of the failure on the part of the petitioner to remit the balance court fee as directed in the impugned order. Though the trial court can exercise the power under Order VII Rule 11 CPC at any stage of the suit, the learned Munsiff ought to have noticed that for the purpose of passing an order under the said Rule, the averments in the plaint are germane. (see Saleem Bhai and others v. State of Maharashtra and others (AIR 2003 SC 759). However, as the order rejecting the plaint amounts to a decree (see the definition “decree” under Section 2(2) of the CPC), the same could not be annulled by exercising the visitorial jurisdiction of this Court under Article 227 of the Constitution of India. 9. It was argued by the learned counsel for the petitioner that, if the order sought to be interfered with in this petition is set aside, even though the order rejecting the plaint is a decree, the same should not be allowed to stand. The said proposition would offend the spirit of the judgment of a Full Bench of this Court in Haji Hassan Rowther v. Bulgheese Beevi (1971 K.L.T. 613 F.B), which advice against such a procedure. The learned counsel for the petitioner, inviting my attention to the decision of the Apex Court in G.Ramegowda v. The Special Land Acquisition Officer, Bangalore (AIR 1988 Supreme Court 897), submitted very persuasively that this is a case of “dependent orders” and if the impugned order is set aside, the subsequent order rejecting the plaint would be rendered nugatory. The learned counsel for the petitioner, inviting my attention to the decision of the Apex Court in G.Ramegowda v. The Special Land Acquisition Officer, Bangalore (AIR 1988 Supreme Court 897), submitted very persuasively that this is a case of “dependent orders” and if the impugned order is set aside, the subsequent order rejecting the plaint would be rendered nugatory. In the aforesaid case, during the pendency of few appeals before the Apex Court, which were filed by the claimants in certain land acquisition cases against the order of the High Court condoning the delay, the main appeals themselves were disposed of finally on merits by the High Court. The Apex Court observed that the fact the main appeals pending before the High Court were disposed of finally on merits by the High Court during the pendency of the appeals before the Supreme Court, would not by itself detract from and bar the consideration of the correctness of the orders condoning the delay. 10. On the same principle, I have considered the correctness of the impungned order and found that the same is not in accordance with law. However, there is a crucial difference between the Ramegowda’s case (cited supra) and the case in hand. In Ramegowda’s case the main appeals were disposed of during the pendency of appeal before the Apex Court. In the instant case, on the other hand, the order rejecting the plaint was before the institution of this petition. The said order is not liable to be visited under the present jurisdiction, though it was the aftermath of the failure on the part of the petitioner to comply with the impugned order. The reason is that an order rejecting the plaint is only an illegal order which will have to be set aside either in appeal or in a review filed before the same court under Order 47 Rule 1 CPC . 11. I, therefore, dispose of this petition permitting the petitioner to file a review petition against the order rejecting the plaint before the lower court on the strength of this judgment, within one month from today. If such an application is filed as above, the lower court shall reckon the same to be as one filed within time and pass orders on the same in accordance with law. If such an application is filed as above, the lower court shall reckon the same to be as one filed within time and pass orders on the same in accordance with law. Drawing analogy from the decision of this Court in Thankappan v. Hassan kappor (2003 (2) KLT 39), it is hereby made clear that the petitioner need not pay the ad valorem court fee on the review petition, as there is no adjudication as to the subject matter of the suit. In the event of filing such an application for review and taking the plaint on file, the lower court shall give the petitioner an opportunity to amend the valuation of the plaint as per the provisions of Section 7 of the Kerala Court Fees and Suits Valuation Act, 1959, as the case may be. In the result, the Original petition is disposed of as above. No costs.