RASILY Vs. SEEMA KHAISE

JUDGEMENT

(1.) This Original Petition is filed by defendants 1 and 2 in O.S. No. 169 of 2011 of the court of learned Sub Judge, Pala aggrieved by the direction issued by the learned Sub Judge in Ext.P3 -IA.No. 1550 of 2011 that the said application will be considered after all the defendants entered appearance and filed written statement. First respondent sued petitioners and other defendants for partition and separate possession of 7/72 shares over 13 items of property referred to in plaint A to C schedules. Petitioners (who are said to have filed written statement) filed Ext.P3, application -I.A. No. 1550 of 2011 to reject the plaint under R.11 of O. VII of the Code of Civil Procedure (for short, "the Code") as court fee paid is not correct. First respondent filed Ext.P4, objection. On Ext.P3, application learned Sub Judge is said to have directed that the same will be considered on other defendants entering appearance and filing written statement. The said order (copy of the order is not produced) is under challenge.

(2.) Learned Counsel for petitioners contended that under S. 12 of the Kerala Court Fees and Suits Valuation Act (for, short, "the Act") in every suit instituted in any court other than the High Court the court shall before ordering the plaint to be registered decide on material allegations contained in the plaint and all the materials and statement if any filed under S. 10 the proper court fee payable. Reliance is placed on sub-s.(2) of the said provision which states that 'any' defendant may file written statement before the first hearing of the suit or before evidence is recorded on merit of the claim plead that subject matter of the suit has not been properly valued. Learned Counsel has placed reliance on the decision in Joseph v. Sara Thomas,1996 2 KerLT 851, P.P.S. Pillai v. Catholic Syrian Bank,2000 3 KerLT 629 and Sham Lal v. Atmanand Jain Sabha (Regd), Dal Bazar, 1987 AIR(SC) 197 to contend that even based on the written statement filed by petitioners the court was obliged to decide question of court fee. Learned Counsel argued that the expression "first hearing" does not mean the date fixed for return of summons but it is the day when the court applied its mind to the case.

(3.) That is the principle laid down by the Supreme Court in Sham Lal v. Atmanand Jain Sabha (Regd.) Dal Bazar referred to above. Now the question is whether even before other defendants appeared and filed written statement, or are declared absent, it was possible for the learned Judge to consider the question regarding valuation of plaint other and payment court fee.