KIRAN KURIAN MATHEW Vs. ASHLY MATHEW C

JUDGEMENT

(1.) Ext.P7 order is under challenge in this Original Petition, as per which, an objection to the question of proper court fee to be levied was relegated to be considered after trial, but as the first issue before deciding other issues.

(2.) Having heard the learned counsel appearing on both sides, this Court is of the opinion that Ext.P7 order is not in terms of the mandate under Sec. 12 of the Kerala Court Fees and Suits Valuation Act. Sec. 12(1) directs that, the court has to decide, based on the materials and allegations on the plaint, whether proper court fee thereon has been paid, which has to be done even before ordering the plaint to be registered. Once the plaint is registered and the defendant appears on notice and rakes up the issue of improper valuation and insufficient court fee, the same has to be heard, going by Sec. 12(2), before evidence on merits of the claim is recorded. Explanation to Sec. 12 clarifies that merits of the claim refers to matters which arise for determination in the suit, not being matters relating to the frame of the suit, misjoinder parties and causes of action, but inclusive of matters arising on plea of res judicata, limitation and the like. In the order under challenge, the learned Sub Judge finds that an issue has already been raised on the correctness of the valuation and Court fee paid, that the issue involves a mixed question of law and facts and that the issue could be decided only after trial. Thereafter, the learned Sub Judge finds that, the issue can be decided after trial, as the first issue, before addressing the remaining issues. It appears that the course adopted by the learned Sub Judge is not legal, when Sec. 12 (1) & (2) specifically mandate that such issue has to be decided before commencement of the trial 'on merits'. If the Sub Court is of the opinion that the question of valuation and court fee is a mixed question of fact and law, possibly evidence may be permitted on that question and a decision taken accordingly, before commencement of the trial on the merits of the matter, as clarified by the explanation to Sec. 12.