Disposed

Shanmughan v. Lakshmi and Others

Kerala HC5 Nov 2009WP(C)/13819/2009

Case brief

AI extract

What is this about?

The High Court rejected the writ petition challenging a Munsiff Court order that dismissed objections to an Advocate Commissioner's report. The court directed the petitioner to file a valuation statement based on the report to determine court fees for mixed reliefs of injunction and property recovery.

What did the court decide?

Petitioner directed to file valuation statement within one month; court below to complete valuation and court fee enquiry within two months.

Shanmughan Vs Lakshmi and Others — Property and Title | Kerala HC (2009)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT :

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THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN THURSDAY, THE 5TH NOVEMBER 2009 / 14TH KARTHIKA 1931

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WP(C).No. 13819 of 2009(O)

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-------------------------OS.380/2006 of MUNSIFF COURT, CHITTUR

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PETITIONER(S):

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---------------

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SHANMUGHAN, S/O.DHANABHAGYAM AMMAL, RESIDING AT ADITHYAPURAM, PALLIPPURAM, PALAKKAD TALUK.

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BY ADV. SRI.V.CHITAMBARESH, SENIOR ADVOCATE SRI.T.C.SURESH MENON SRI.JIBU P THOMAS SRI.P.S.APPU SRI.A.R.NIMOD SRI.C.A.ANOOP

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RESPONDENT(S):

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---------------

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1. LAKSHMI, WIDOW OF CHELLAN.

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2. SREEDHARAN, S/O.CHELLAN.

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3. SIVAN, S/O.CHELLAN.

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4. SUDEVAN, S/O.CHELLAN.

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5. SUKUMARAN, S/O.CHELLAN.

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6. VASUDEVAN, S/O.CHAMI, ALL ARE RESIDING AT MATHAIKADAVU, MYLANCODE, CHITTUR TALUK, PALAKKAD DISTRICT.

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ADV. SRI.K.MOHANAKANNAN FOR R1-5 SMT.A.R.PRAVITHA FOR R1-5

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WPC.13819/09

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APPENDIX

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PETITIONERS EXHIBITS:

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EXT.P1: COPY OF THE FINDING ON PRILIMINARY ISSUE NO.1 IN O.S.NO.380/2006 ON THE FILE OF THE COURT OF THE MUNSIFF OF CHITTUR DATED 10.7.2008.

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EXT.P2: COPY OF THE REPORT OF THE ADVOCATE COMMISSIONER DEPUTED IN O.S.NO.380 OF 2006 DATED 13.2.2009.

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EXT.P3: COPY OF THE APPLICATION IN I.A.NO.902/2009 FILED BY THE PETITIONER IN O.S.NO.380/2006 DATED 18.3.2009.

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EXT.P4: COPY OF THE ORDER IN I.A.NO.902/2009 IN O.S.NO.380/2006 ON THE FILE OF THE COURT OF THE MUNSIFF OF CHITTUR DATED 31.3.2009.

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/TRUE COPY/

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P.A. TO JUDGE

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S.S.SATHEESACHANDRAN, J.

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W.P.(C).NO.13819 OF 2009 (O)

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Dated this the 5^th day of November, 2009

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J U D G M E N T

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Petitioner is the plaintiff in O.S.No.380 of 2006 on the file of the Munsiff Corut, Chittur. Suit is for declaration of title, recovery of possession and perpetual prohibitory injunction, and the respondents are the defendants. In the suit, there are 14 items of properties. In respect of item Nos.1 to 9, plaintiff sought for a decree of perpetual prohibitory injunction, and in respect of the other items viz Nos.10 to 14, a declaration of its title along with his brother, who is not made a party to the suit, and for recovery of the items covered by 'A' schedule, which are separately scheduled as 'B' schedule. In the written statement, resisting the suit claim, the contesting defendants, among other contentions, disputed the valuation of the suit and also the court fee paid, on the reliefs claimed, as inadequate and insufficient. An Advocate Commissioner was appointed by the court to conduct a local

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WPC.13819/09 2

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inspection over the property to ascertain its market value and also nature of the land for the purpose of determining its valuation, and court fee payable on the suit. Ext.P1 is the copy of that order. Pursuant to Ext.P1 order, Advocate Commissioner, after conducting local inspection, filed Ext.P2 report. Plaintiff filed objections to Ext.P2 report. Ext.P3 is the objection, in which remission of the report was sought for contending that the Commissioner has not properly determined the nature of the land and also that major portions of item Nos.10 to 14 are rocky lands. After examining the commission report in the light of the objection raised by the plaintiff, the court below passed Ext.P4 order negativing the objection of the plaintiff, and directed the plaintiff to file a fresh valuation statement in tune with the report of the Commissioner. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India.

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I heard the learned counsel on both sides. At the time

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WPC.13819/09 3

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of hearing, the learned counsel for the petitioner/plaintiff submitted that in Ext.P2 report, the Commissioner has not furnished the necessary data in respect to the items covered in the suit to enable the court to determine the actual valuation of the plaint items, and thereby, determine the court fee payable in relation to the reliefs sought for in the suit. An omnibus report in respect of the 14 items together had been prepared by the Commissioner without taking note that in respect to item Nos.1 to 9, the relief of injunction has been claimed by the plaintiff and only in respect of item Nos.10 to 14, the relief of declaration and recovery was sought for. As the reliefs so canvassed contemplate different modes of payment of court fee the report prepared by the Commissioner is not of any assistance to the court or to the parties, is the submission of the counsel. On the other hand, the learned counsel for the respondents/defendants contending that Ext.P2 report of the Commissioner would indicate that all the plaint items are agricultural lands and what is required is only calculation of the valuation of the suit in accordance with the assessment made by the Commissioner, which will enable the

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WPC.13819/09

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court to decide whether it has jurisdiction to entertain the suit. Reliefs are claimed in a different manner with respect to different items cannot have any impact on the valuation to be arrived at in respect of the plaint items, and that can be done in accordance with the report prepared by the Commissioner, is the submission of the learned counsel for the respondents/defendants. At the time of hearing, though an argument was canvassed that portions of item Nos.10 to 14 are rocky lands, after perusing Ext.P2 report of the Commissioner, I find that all the plaint items are agricultural lands, and so much so, necessarily and inevitably, the market value of the plaint items has to be assessed as if they are agricultural lands as contemplated under Section 7 (2) of the Kerala Court fees and Suits Valuation Act. Existence of one or two buildings in the plaint property is not taken into consideration by the Commissioner while preparing Ext.P2 report, and that being so, its separate valuation need not be pursued to proceed further with the further steps for trial of the suit. So much so, on the basis of Ext.P2 report, the plaintiff has to prepare valuation statement specifying every

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WPC.13819/09

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item covered by the suit even if that has not been meticulously given in the report of the Commissioner. I make it clear that the valuation to be fixed by the plaintiff should be made in tune with the assessment made by the Commissioner in Ext.P2 report. Once such valuation statement is filed by the plaintiff and after hearing the defendants, if any objection is canvassed thereto, the court below has to consider the court fee payable also with reference to the statement made by the plaintiff in tune with his valuation taking note that valuing the suit is distinct from payment of court fee, and the latter has to be determined by the reliefs sought for. In respect of item Nos.1 to 9, the plaintiff has sought for only a decree of injunction, and so much so, court fee as contemplated under Section 27 (c) of the Kerala Court Fees and Suits Valuation Act, has to be paid on the value at which the relief sought is claimed. As regards the other items since declaration of title and recovery of possession is sought for, court fee has to be paid depending upon the market value of the property as assessed and valuation fixed. Plaintiff shall file the valuation statement before the court below within one month from the date of this

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WPC.13819/09

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judgment and the court below shall complete the enquiry on the valuation and also court fee payable within a further period of two months. Plaintiff shall also file the application for amendment of the plaint in tune with the valuation suggested and court fee payable, while filing his valuation statement, so that further protraction of the proceeding of the suit could be avoided, in case the suit requires to be returned for presentation before the court on allowing of the amendment. With the above observations, the writ petition is disposed.

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S.S.SATHEESACHANDRAN JUDGE

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prp

Shanmughan v. Lakshmi and Others

Case brief

What is this about?

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Shanmughan v. Lakshmi and Others

Case brief

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