K.R. RAJARAM Vs. C.S. SHIBU

JUDGEMENT

(1.) DEFENDANT /Petitioner seeks to challenge the order of the Munsiff 's Court, Ernakulam holding that the court fee paid in the suit by the plaintiff respondent is sufficient, invoking the visitorial jurisdiction of this Court under Article 227 of the Constitution. Ext.P4 is the order challenged in this petition.

(2.) SHORT facts necessary for disposal of this petition can be summed up thus:- Plaintiff with his brother was in occupation of a room in a building owned by the defendant. On demand from the defendant for surrender of the leased premises, to facilitate the reconstruction of a new building after demolishing the old structure, on terms agreed upon and execution of Ext.P5 agreement plaintiff surrendered the building. Ext. P5 agreement provided that plaintiff will be given a room in the ground floor of the reconstructed building, with its plinth area specified, for a monthly rent of Rs.2700.00 and that reconstruction of the building will be completed within a period of 1ï¿ 1/2 years in terms of the approved plan obtained by the defendant. The defendant defaulted in reconstructing the building after getting vacant possession and its demolition, was the case of the plaintiff to seek for specific performance of Ext.P5 agreement to direct the defendant to reconstruct the building within a period of six months and lease out a room as agreed upon. In the alternative plaintiff sought for a decree to reconstruct the building at his cost, and adjust the expenses thereof in the rent payable if the defendant failed to obey the decree to reconstruct the building. Suit was resisted by the defendant raising various contentions including a plea that suit is under valued and sufficient court fee has not been paid. Ext.P2 is the original written statement filed by the defendant. He later filed an additional written statement (Ext.P3) in which some more contentions were raised to reinforce the objections in the original written statement that the suit is under valued and court fee paid insufficient. Plaintiff thereupon got the plaint amended by which some of the reliefs canvassed earlier were given up and other relief remoulded to press for a decree of specific performance of Ext.P5 agreement with an alternative prayer to permit the plaintiff to put up reconstruction. Taking note of the amended plaint and reliefs canvassed there under learned Munsiff concluded that many of the objections raised by the defendant to challenge the valuation of the suit and also insufficiency of court fee paid have become redundant and not worthy of consideration. Valuation of the suit and court fee paid by the plaintiff computing the aggregate amount for an year on the rent agreed to be paid by the plaintiff for occupation of the room in the reconstructed building under Ext.P5 agreement under section 42 (c) of the Kerala Court Fees and Suit Valuation Act, for short the Act, was found to be proper and sufficient to repel the challenges raised by the defendant. Ext. P4 order so passed by the learned Munsiff is improper, unsustainable and suffer from serious infirmity is the case of the defendant for filing this petition.

(3.) LEARNED counsel for petitioner contended that valuation of the suit property should be made not on the annual rent agreed to be paid for occupation of the room in the reconstructed building fixing in Ext.P5 agreement, but, with reference to the market value of the property where the new building is to be put up. In the case in hand. According to counsel, where specific performance of Ext.P5 agreement is sought for, which is one for enforcement of a promise made by the landlord to provide a room in a reconstructed building the consideration for the promise has a market value and it is the market value of the property. A fractional interest in such property alone the tenant will obtain under the promise of the landlord according to the counsel would not enable him to value the consideration of such promise differently from the market value of the property, and, on the rent agreed to be paid under Ext.P5 agreement. In a case where suit claim is over a restricted or fractional interest in a property having market value, then the value of the property for the purpose of valuation of the suit has to be calculated with reference to the value of the restricted or fractional interest, and court fee payable in such suit has to be computed in terms of Section 7(4) of the Act, submits, the counsel. Learned Munsiff has gone wrong in holding that the suit has to be valued under section 42 (c) of the Act and passing Ext.P4 order upholding the valuation made and court fee paid by the plaintiff as sufficient, according to counsel.