MINITA DAPHNE NITTO Vs. MARGRET BENEDICT

JUDGEMENT

(1.) An issue regarding valuation of subject matter of the suit for the purpose of court fee is raised for a decision. The question arose in O.S. No. 1473 of 2004 of the court of learned First Additional Munsiff, Ernakulam filed by the petitioners for a declaration of their right of kudikidappu over the suit property - three cents out of the four cents scheduled in the plaint and the structure thereon and for consequential prohibitory injunction. For the purpose of valuation, petitioners valued the relief of declaration at Rs. 10,000/- being the market value of the property and paid court fee under Sec.25 of the Kerala Court Fees and Suits Valuation Act (for short, "the Act"). The relief of prohibitory injunction was valued at Rs. .500/- and court fee was paid under Sec.27 (c) of the said Act. Respondents in paragraph 8 of their written statement challenged the valuation made by the petitioners. Learned Munsiff embarked on an enquiry as provided under Sec. 19 of the Act and appointed an Advocate Commissioner to ascertain the value of the property. The Advocate Commissioner after inspection on 30.07.2007 submitted Ext. Pl, report dated 31.07.2007 wherein he reported that the property is valued at Rs. 24 lakhs. Based on that, learned Munsiff passed Ext. P3, order directing petitioners to amend the plaint accordingly. That order was challenged in this Court in C.R.P.N0. 1073 of 2007 on various grounds including that learned Munsiff was not correct in not considering Ext. P2, objection filed by the petitioners to Ext. Pl, report of the Advocate Commissioner. This Court disposed of the civil revision by Ext. P4, order dated 26.06.2008. This Court was of the opinion that since petitioners claimed declaration and consequential injunction valuation must be under Sec.25(b) of the Act and even if the alternative argument is accepted it should come under Sec.25(d)(i) of the Act. This Court was not satisfied with the manner in which learned Munsiff passed Ext. P3, order, set aside that order and directed learned Munsiff to re-consider issue No. 1 and decide on what head the suit is to be valued and court fee is to be paid and pass appropriate orders in accordance with law Pursuant to Ext. P4, order learned Munsiff has passed Ext. P5, order again relying en Ext Pl, report and directing petitioners to pay court fee under Section 25(b) of the Act taking the market value of the property shown by the Advocate Commissioner Rs. .24 lakhs). The said order is under challenge.

(2.) Learned counsel petitioners has contended that the order (Ext. P5) acting upon Ext. P 1, report without referring to the objection preferred by the petitioners to that report is unsustainable. Reliance is placed on the decisions in Uma Kanta Banerjee v. Renwick and Co. Ltd., 1953 AIR(Cal) 717 Harbans Lal v. Jagmohan Saran, paragraph 5 and Mst. Rattani and others v. Dharam Chand alias Dharam and others,1999 5 AIHC 3581. In the last of the decisions it is held that the report of the Advocate Commissioner cannot be relied upon without first deciding the objections made thereto by a party.

(3.) In Ext Pl, report the Advocate Commissioner has valued the property at Rs. 24 lakhs. On going through Ext P 1, report it would appear that the Advocate Commissioner had in mind the potential value of the property having regard to its location. It is stated that the property is situated near the High Court and Marine Drive and considering the location and nature of the property, the Advocate Commissioner is of opinion that the 'market value' of the property at the time of institution of the suit is Rs. 24 lakhs. Ext. P2 is the objection preferred by petitioners to that report. Various objections are raised in Ext. P2. It is contended that the assessment of market value made by the Advocate Commissioner is based on whims and fancies and the market value stated as Rupees six lakhs per cent is illogical and unreasonable. It is pointed out in the objection that the Advocate Commissioner has not verified any document to arrive at the conclusion that the market value is Rs. 24 lakhs. It is argued by the learned counsel that at any rate, for the purpose of valuation under the Act what is relevant so far as mis case is concerned is not the potential value of the property it would fetch having regard to its location but, the market value as assessed under Sec.7 of the Act