LAWS(KER)-2012-2-43

SHEEBA Vs. SASIDHARAN

Decided On February 06, 2012
SHEEBA Appellant
V/S
SASIDHARAN Respondents

JUDGEMENT

(1.) Defendants 6 to 8 in O.S.No. 437/03 on the file of the Principal Sub Court, Irinjalakuda, have filed this revision, challenging the order dated 6.6.2006 in I.A.No. 346/06 passed by the learned Sub Judge. The above suit is one for partition and instituted by the 1st respondent and plaintiffs. However, later, the co-plaintiff with the 1st respondent was transposed as the additional 8th defendant in the suit. Suit property having an extent of 75 cents, was valued in the plaint at Rs. 7,50,000/-, and claiming to be in joint possession with the other sharers, fixed court fee in respect of 2/8 shares of the plaintiffs was paid under Section 37(2) of the Kerala Court Fees and Suits Valuation Act, 1959 {hereinafter referred to as "the Act"}. After the transposition of the 2nd plaintiff as additional 8th defendant in the suit, the valuation of the share of the remaining plaintiff- the 1st respondent, even on the valuation made in the plaint, is much less than the pecuniary jurisdiction of the Sub Court, to continue with the suit before that court was set forth by the petitioners/ defendants 6 to 8 in the suit, for return of the plaint contending that the Sub Court has no more jurisdiction to proceed with the suit. An application moved by the petitioners (defendants 6 to 8) as I.A.No. 346/06 contending as aforesaid, it is stated, was turned down by the learned Sub Judge; and, its legality and correctness is assailed in this revision.

(2.) In the revision, the plaintiff and 4th defendant alone have been made parties as respondents. Though the 1st respondent/ plaintiff was served, he has elected to remain absent. Notice to the 2nd respondent/ 4th defendant has not been effected, as steps thereof were not taken. So, dispensing with notice to the 2nd respondent, and also the non-impleadment of the other parties in the suit as respondents in the revision, which is not of any significance in considering the merit of the order impeached, I heard the learned counsel for the petitioners on the merits of the revision.

(3.) Pointing out that even where fixed court fee is payable under sub-section (2) of Section 37 of the Act, in which partition is claimed by the plaintiffs claiming joint possession with the other sharers, jurisdiction of the court to maintain the suit thereof depends upon the share value of the plaintiff's, the learned counsel contended that on the admissions made in the plaint after the transposition of the co-plaintiff (2nd plaintiff) as additional 8th defendant in the suit, the Sub Court, before which the plaint was presented, has no jurisdiction. Share value of the sole plaintiff, after transposition of co-plaintiff's a defendant, is less than Rs. 1. lakh. In such circumstances, the court below has to return the plaint for presentation before the proper court, is the submission of the counsel. The learned counsel would submit that the principles to be followed when an amendment to the plaint affects the valuation of the suit has to be followed in the case of transposition of one or more plaintiff/s as defendants. The decisions rendered in Balasubramaniam v. Narayanan Nair,1985 KerLT 314 and Sufi Films v. Govinda Prabhu, 1987 2 KerLT 145 are relied by the counsel to contend that the principles stated therein in relation to change of valuation on amendment of a plaint applied in the case of transposition of a party to the suit as well in affecting jurisdiction of the court.