NITHYANANDA PAI Vs. SAROJINI PRABHU

JUDGEMENT

(1.) Ext.P5, order dated 01.11.2012 on I.A.No.4560 of 2010 in O.S.No.449 of 2008 passed by the learned Principal Sub Judge, Irinjalakuda holding that court fee is payable in the suit under Sec.42(e) of the Court Fees and Suits Valuation Act (for short, "the Act") is under challenge at the instance of the petitioner/2nd defendant.

(2.) There was a partnership between Rajananda Pai (father of the petitioner and respondents 5 and 6 and husband of the 3rd respondent and respondents 4) and respondents 4 to 6 on the one side and respondents 1 to 3/plaintiffs on the other side for business in petroleum products. According to respondents 1 to 3, after the death of Rajananda Pai there was a settlement reached between the petitioner and respondents 4 to 6 on the one side and respondents 1 to 3 on the other side regarding continuance of the partnership business which resulted in Ext.P1, agreement dated 26.01.2007. The terms and conditions of the settlement are mentioned in Ext.P1, agreement. Respondents 1 to 3 filed the suit contending that they have performed their part of the contract as per Ext.P1 but, the petitioner and respondents 4 to 6 have refused to execute a deed of conveyance with respect to an item of property by name vynthala property in the name of respondents 1 to 3 and hence they sued for specific performance of Ext.P1, agreement to that effect. The suit was valued under Sec.42(e) of the Act at Rs.2,28,871/ - and court fee was paid accordingly.

(3.) The petitioner and respondents 4 to 6 while resisting the suit on various grounds including that they have not executed any agreement like Ext.P1, contended that valuation of the suit is not correct. The petitioners filed I.A.No.4560 of 2010 for a decision on the issue regarding court fee. The learned Sub Judge by Ext.P5, order held that court fee is payable under Sec.42(e) of the Act as done in the case. Challenging that order, this original petition is filed.