Research › Search › Judgment

Kerala High Court · body

2017 DIGILAW 1018 (KER)

Krishnankutty v. Mohammed @ Mani

2017-07-12

P.SOMARAJAN

body2017
JUDGMENT : 1. Aggrieved by the order dated 28.6.2013, passed in I.A.No.1231 of 2013 in O.S.No.601 of 2000, and the order dated 25.7.2013 in O.S.No.601 of 2000, on the files of the Munsiff's Court, Ottapalam, the defendant came up with this petition under Article 227 of the Constitution of India. 2. What is under challenge are the two orders, exhibited as P6 and P7, rejecting appointment of a Commission and rejecting the objection to the valuation of the plaint 'B' schedule property, having an extent of 0.23 cents, alleged to have been trespassed by the defendant. The prayer for mandatory injunction to re-fill the excavated portion was valued at Rs,500/- under Section 27(c) of the Kerala Court Fees & Suits Valuation Act, 1959 (for short 'the Act') and court fee was paid in accordance with the valuation made therein. The defendant filed two applications; one is for issuance of a Commission for ascertaining the value of 0.23 cents of property, scheduled in the plaint as 'B' schedule, for the purpose of valuation and court fee and by the other application, disputed the valuation statement in the plaint. The lower court dismissed the application for appointment of a Commission and rejected the objection raised regarding valuation statement. 3. Aggrieved by the above said two orders, Exts.P6 and P7, this petition was filed under Article 227 of the Constitution of India. The questions raised are:- (i) Whether it is permissible to issue a Commission for the purpose of ascertaining the value of the property scheduled in the plaint? (ii) Whether such application can be filed at the instance of the defendant? (iii) What are the factors governing valuation of immovable property for the purpose of court fees and suit valuation? (iv) What would be the effect of incorporation of sub-section 3A to Section 7 of the Act by Act 6 of 1991 in determination of market value of any property either landed or the building? 4. Valuation of the immovable property, for the purpose of court fees and suit valuation, has to be done in accordance with Section 7 of the Act and it shall be determined as on the date of presentation of the plaint. Sub-sections (2) to (4) of Section 7 deals with fixation and determination of market value of the property for the purpose of computation of court fees. 5. Sub-sections (2) to (4) of Section 7 deals with fixation and determination of market value of the property for the purpose of computation of court fees. 5. Determination of market value as envisaged under Section 7 of the Act covers both agricultural land and non-agricultural land and also building. The determination of market value of an agricultural land in suits falling under Section 25(a), 25(b), 27(a), 29, 30, 37(1), 37(3), 38, 45 or 48 shall be deemed to be ten times of the annual gross profits of such land where it is capable of yielding annual profits minus the assessment if any made to the Government. The provision for fixing the market value of a building is sub-section (3) of Section 7 and it should be ten times of the rental value, if it has duly entered in the registers kept by any local authority and in other cases, the actual market value of the building as on the date of the plaint. Section 7 of the Act is extracted below for reference: “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 Section 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. (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 the restricted 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.” (emphasis supplied) 6. Going by Section 7, it is clear that, in so far as agricultural land is concerned, for the purpose of suits falling under Section 25 (a), 25(b), 27(a), 29, 30, 37(1), 37(3), 38, 45 or 48, the market value shall be deemed to be ten times of the annual gross profits of such land where it is capable of yielding annual profits minus the assessment if any made to the Government. The market value of the building is separately dealt with under sub-section (3) of Section 7 and it shall be ten times of the rental value entered in the registers of any local authority and, in other cases, the actual market value of the building as on the date of the plaint. So, sub-section (3) has got two parts. The first part is dealing with the market value of a building wherein its rental value has been entered in the registers of any local authority, and the second part is dealing with the other cases of buildings wherein the market value would be the actual market value of the building as on the date of the plaint. The difference in the method of assessment was drawn under sub-section (3) of Section 7 based on the question whether its rental value has been entered in the registers of any local authority or not. Sub-section (3A) was subsequently incorporated with effect from 5.12.1990, which says that the market value of any property other than agricultural land and building falling under sub-sections (2) and (3), shall be the value it would fetch on the date of institution of the suit. Sub-section (3A) was subsequently incorporated with effect from 5.12.1990, which says that the market value of any property other than agricultural land and building falling under sub-sections (2) and (3), shall be the value it would fetch on the date of institution of the suit. The determination of actual value of the property would arise only under the second part of sub-section (3) and under sub-section (3A) of Section 7 of the Act. In other cases, the actual market value has no role to play in the determination of market value for the purpose of payment of court fee and valuation of the suit property. 7. In the present case, the suit is valued under Section 27(c) of the Act. In so far as Section 27(c) is concerned, Section 7 of the Act has no application. Determination of market value of the property in consonance with Section 7 of the Act would arise only when the relief sought is valued under Section 25(a), 25(b), 27(a), 29, 30, 37(1), 37(3), 38, 45 or 48 of the Act. Section 27 of the Act is extracted below for reference: “27. Suits for injunction.-- In a suit for injunction -- (a) Where the reliefs sought is with reference to any immovable property, and (i) where the plaintiff alleges that his title to the property is denied, or (ii) where an issue is framed regarding the plaintiff's title to the property, fee shall be computed on one-half of the market value of the property or on rupees five hundred, whichever is higher; (b) 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 five hundred, whichever is higher. (c) in any other case, whether the subject-matter of the suit has a market value or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees five hundred, whichever is higher: Provided that where the relief sought by the plaintiff is in respect of money sought to be recovered from him such relief shall not, for the purpose of computation of fee, be valued at an amount less than one half of the amount sought to be so recovered.” 8. Clause (a) to Section 27 alone is brought under the purview of Section 7 of the Act. In so far as clause (c) to Section 27 is concerned, the market value of the subject matter has no role at all. Whether the subject matter has got a market value or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on Rupees five hundred, whichever is higher. The proviso attached to Section 27 says that where the relief sought by the plaintiff is in respect of money sought to be recovered from him such relief shall not, for the purpose of computation of fee, be valued at an amount less than one half of the amount sought to be so recovered. Clause (c) to Section 27 would come into play only on exclusion of application of clauses (a) and (b) and the expression “in any other case” stands for exclusion of the earlier clauses, the clauses (a) and (b) to Section 27. Admittedly, the plaint prayer would not come under clause (b). Clause (a) would come into play when the relief sought is with reference to any immovable property, and (i) where the plaintiff alleges that his title to the property is denied, or (ii) where an issue is framed regarding the plaintiff's title to the property. The relief sought in the plaint, being a mandatory injunction to re-fill the excavated portion of the plaintiff's property, cannot be brought under either sub-clauses (i) or (ii) to clause (a) to Section 27 of the Act. Necessarily, the suit would come under the purview of Section 27(c) of the Act in exclusion of clauses (a) and (b) to that Section, wherein the question of what would be the market value of the property does not arise. Necessarily, the suit would come under the purview of Section 27(c) of the Act in exclusion of clauses (a) and (b) to that Section, wherein the question of what would be the market value of the property does not arise. So, issuance of a Commission for that purpose is not permissible. In the result, the Original Petition deserves only dismissal and I do so, but without costs. It is made clear that it will not stand in the way of the defendant or the plaintiff to apply for issuance of a Commission for any other purpose, including the purpose of conducting local inspection and measurement of the property, in accordance with Order XXVI Rules 9 and 10 of the Code of Civil Procedure.