Research › Search › Judgment

Kerala High Court · body

2025 DIGILAW 1931 (KER)

Biju Samuel v. Shibu

2025-07-10

K.NATARAJAN

body2025
JUDGMENT : K. Natarajan, J. OP(C) No.286/2023 is filed by the petitioner/plaintiff being aggrieved by the order passed by the Sub Judge, Chengannur in IA No.10/2022 in OS No.20/2020 dated 21.01.2023 for having dismissed the application filed by the petitioner under Order XXVI Rule 10 A (1) of the Code of Civil Procedure, 1908. 2. OP (C) No.39/2024 filed by the petitioner/2 nd defendant as against the order passed by the very same Court on IA No.7/2021 in the same Suit, i.e., O.S.No.20/2020, for allowing the plaintiff to pay the court fee in subsequent stage, by allowing the application under Order 33 Rule 1 of CPC in part, vide order dated23.11.2021. 3. Heard the arguments of the learned counsel for the petitioner and the counsel of the respondents. 4. The case of the petitioner/plaintiff in OS No.20/2020, he has filed the suit against the defendants for realization of money said to be constructed building by purchasing the site on the request of the 1 st respondent who is said to be the brother- in - law of the plaintiff. Accordingly, said to be spent Rs.24 Lakhs more than the amount paid by the defendant. Hence, he has filed the Suit. The defendants appeared and filed written statement by defending the same. The defendants filed another suit against the plaintiff, i.e., OS No.15/2020 alleging that he has paid the amount to the plaintiff and he has misappropriated the same and he has purchased the property in his name. Therefore, prayed for realisation of Rs.20,78,567/-. Subsequently, both the cases are clubbed together and the petitioner/plaintiff is said to be lead the evidence. After completion of the evidence, the present application under Order XXVI Rule 10 A (1) of CPC filed for appointing the commissioner, for measuring the construction of the building, and value the construction of the building for the purpose of proving his case. The same was objected by the respondents which came to be dismissed. Accordingly, the petitioner approached this Court. 5. The learned counsel for the petitioner has seriously contended that though the defendants paid the amount of Rs.63 Lakhs plus amount, but the plaintiff has purchased the site and put up the construction and he has spent more than Rs.24,34,000/- over and above the amount paid by the defendant. Though he has produced some documents, but unable to give full details. Though he has produced some documents, but unable to give full details. Therefore, it is necessary for the petitioner/plaintiff to verify the cost of the constructions and value the building for the purpose of proving his case. Therefore, rejecting the application is not correct and it is nothing but collection of evidence to the defendants as well as filing the Court fee. 6. Per contra, the learned counsel for the respondent seriously objected to the petition, mainly on the ground that the evidence of the plaintiff was already over and he had not produced a single document to prove his case, on the other hand he had misappropriated the amount. The defendant already filed a Suit and he has to lead evidence, he has produced all the documents before the court. Therefore, if the application is allowed, it is nothing but collection of the evidence by one of the plaintiffs which cannot be allowed. Hence, prayed for dismissal of the petition. 7. In respect of another petition that is OP (C) No.39/24 filed by the 2 nd defendant by challenging the order passed by the same court in IA under Order 33 Rule 1 of the CPC filed by the very plaintiff to continue the Suit or file the suit as indigent person on the ground he has no money for payment of court fee Rs.2,13,120/- and he is able to pay only 10% he wants to benefit under the legal fund by relying upon various judgments. Considering the same, the trial court allowed the application permitted him to pay 10% court fee and the remaining court fee is directed to pay only after the final decision of the Suit. By challenging the same, the 2 nd defendant filed this petition. The counsel for the petitioner/defendant has contended that though the application was filed during the year 2021, now the plaintiff is running the hotel business having sufficient income and he cannot be said to be an indigent person, he has misappropriated the amount from the defendant and he has purchased the property. Such being the case, the question of granting time to pay the court fee after final decision is not correct. Therefore, the order under challenge called for interference, hence prayed for allowing the petition. 8. Such being the case, the question of granting time to pay the court fee after final decision is not correct. Therefore, the order under challenge called for interference, hence prayed for allowing the petition. 8. Per contra, the respondent/plaintiff objected the petition contending that petitioner has spent more than Rs.24 Lakhs over and above the amount paid by the defendant for the purpose of construction and he has filed the suit for realization of money of Rs. 24 Lakhs and his chicken business was closed during the Covid -19 pandemic period and there is no means at that time. Therefore, he has paid only 10% of the Court fee as provided under the Kerala Court Fee Suit Valuation Act and the remaining amount he will remit after the final judgment. Therefore, he has contended that there is no need to interfere in the order. Hence prayed for dismissal of the OP(C)No.39/24. 9. Having heard the arguments and perused the documents. On perusal of the same, OP (C) No.286/2023 the plaintiff filed the suit for realization of 24 Lakhs on the ground the defendant said to be the brother in-law sent amount to the petitioner for purchasing the site and put up the construction and he said to be constructed the house and spent more than Rs.24 lakhs over and above the amount paid by the defendant but the defendant is refused to pay the same and therefore he has filed the suit for realization of the 24 Lakhs. Whereas the defendant is contended that he has paid the money and produced the document and plaintiff misappropriated the amount and he has purchased the property only in the name of the plaintiff and therefore he has filed another suit for recovery of the said amount from him. The plaintiff led the evidence and said to be produced and marked 5 documents and evidence of the plaintiff was closed and the case was posted for defendant’s evidence. It is also seen from the records, both the suits, O.S.No.20/2020 filed by the plaintiff and OS No.15/2020 filed by the defendant are clubbed together for passing the common judgment. The plaintiff’s contention for appointment of the commissioner is that he was required to value the construction by appointing the commissioner. The same is objected. It is also seen from the records, both the suits, O.S.No.20/2020 filed by the plaintiff and OS No.15/2020 filed by the defendant are clubbed together for passing the common judgment. The plaintiff’s contention for appointment of the commissioner is that he was required to value the construction by appointing the commissioner. The same is objected. The trial court has dismissed the application on the ground that the petitioner has not produced a single document for proving his case that he spent some amount for construction of the building scheduled item 1, 2 and 5. 10. As per the submission made by the petitioner counsel he has produced 5 documents. It is submitted by the learned counsel for the petitioner that it is a two storied building but the item properties are scheduled item 1 , 2 and Item 5. If the respondent paid more than Rs.62 Lakhs for the purpose of construction, if the petitioner constructed the building by spending the amount he could have procured the bill from whom he has purchased cement, sand, bricks etc., other than the labour charges for construction workers. It is submitted that only 5 documents were produced by him. Therefore, when the petitioner’s contention is that he has spent more than 24 lakhs over and above Rs. 62 Lakhs paid by the defendants, it is the plaintiff to produce the documents at first instance he has spent so much amount. By paying the amount, purchasing the construction material by obtaining the receipt. If the plaintiff spent any other amount than the purchasing of any materials by obtaining the bills other than the payment made to the other construction workers other miscellaneous expenditure he could have kept the accounts for the purpose of submitting to the court. No such document is produced before the court if the application is filed for valuing the property is nothing of collection of evidence for the purpose of proving the case. Once the plaintiff filed a suit contending that he has spent Rs.24 lakhs over and above the amount paid by the defendant he has to keep all the receipts and bills for the purpose of proving the case. It submitted that he has already completed his evidence and now the case is posted for the defendant's evidence. Once the plaintiff filed a suit contending that he has spent Rs.24 lakhs over and above the amount paid by the defendant he has to keep all the receipts and bills for the purpose of proving the case. It submitted that he has already completed his evidence and now the case is posted for the defendant's evidence. such being the case the appointing the commissioner at this stage is nothing but collection of the evidence and of the petitioner for leading evidence that is not permissible under the law. Therefore, the question of appointing commissioner at this stage is not advisable. 11. However, if the petitioner is able to prove by producing any documents in any subsequent stage of suit and after leading evidence by the defendant if the court finds that it is necessary for appointing the commissioner for valuing the property and then the trial court can appoint the commissioner for ascertaining the value of the construction made by the petitioner, but not at this stage. Therefore, the petition filed by the petitioner challenging the order of the dismissing the commission application doesn't call for any interference. Therefore, the OP(C)No.286/23 is deserved to be dismissed. 12. As far as OP(C) No.39/24, wherein the defendant filed the suit for realisation of the money on the ground that he has paid more than Rs.62 lakhs by transfer and he has produced the document but, the petitioner said to be misappropriated the amount and he has purchased the property in his name but, he has filed application for prosecuting the suit by indigent person but is having more income by running the hotel and is having landed property. But the trial court permitted to file the suit by indigent person only obtaining 10% of the court fee. The impugned order dated 23.11.21 was passed by the court immediately after the lock down of covid-19 pandemic. Now, the situation is almost changed and all the business are running smoothly and the plaintiff also said to be purchasing the property in his name and as per the contention of the defendant counsel is having a hotel business and earning income that apart the petitioner also said to be having the chicken stall at the time of passing the order. 13. 13. Such being the case, he cannot be said to be indigent person for the purpose of granting time to pay court fee at the final stage of the judgment, which is not correct. Therefore, when the petitioner is said to be spent Rs.24 lakhs more than the amount issued from the defendant and is having purchased the property in his name and he is having business income, the question of paying the court fee at the final stage is not correct. Therefore, the order under challenge is liable to be set aside and the trial court ought to have granted some time to pay the remaining court fee. Therefore, the order under dispute is deserved to be set aside. 14. Accordingly, this Court passed the following orders:- i. The petition filed by the petitioner/plaintiff in OP C 286/23 is hereby dismissed; ii. O P (C)No.39/2024 is filed by the respondent/ defendant is hereby allowed; iii. The order passed by the trial court in IA.No.7/2021 in O.S.No.20/2020 under Order 33 Rule (1) of CPC is set aside; iv. Two months time granted to the petitioner/plaintiff for paying the remaining Court fee; v. The trial court shall proceed with the trial, and vi. All pending IAs do not have any consideration.