ISSAC PETER Vs. K.V. JOSEPH

JUDGEMENT

(1.) THE Civil Revision has come up for admission.The question is whether notice is to be ordered.The defendants in a suit for dissolution of partnership,rendition of accounts winding up the business,partition and separate possession of the share of the plaintiffs to them,are the petitioners in the Civil Revision.The plaintiffs respondents valued the reliefs at Rs.20,000/ - under S.36 of the Kerala Court Fees and Suits Valuation Act,1959 and paid court fee accordingly.In the written statement the defendants petitioners contended,among other things,that the valuation shown in the plaint and the court fee paid are not proper and correct.At the instance of the petitioners,the issue regarding court fee was preliminarily heard and decided by the trial court.Rejecting the contentions of the petitioners the trial court held: Under S.36(1)of the Court Fees Act,a suit for dissolution of partnership and accounts or for accounts of dissolved partnership,fee shall be computed on the value of the plaintiff 's share in the partnership as estimated by the plaintiff.Sub clause(2)of S.36 provides that if the value of the plaintiff 's share as ascertained in the suit exceeds the value as estimated in the plaint no decree,or where there has been a preliminary decree,no final decree,shall be passed in favour of the plaintiff,no payment shall be made out of the assets of the partnership and no property shall be allotted as for the plaintiff 's share,until the difference between the fee actually paid and the fee that would have been payable had suit comprised the whole of the value so ascertained,is paid.Sub clause(3)provides for the payment of court fee by the defendant and has no application here.A reading of Clause.1 and 2 of S.36 clearly shows that the plaintiff is at liberty to sue for his share by estimating the share value and payment of court fee thereon and if ultimately it is found that the plaintiff 's share is ascertained as something more than the estimate made in the plaint he will be liable to pay it i.e.on such final ascertainment of the share due to the plaintiff.The suit has not reached that stage and the share that is actually due to the plaintiff will be ascertained only at the time of the disposal of the suit.Till then the estimate made by the plaintiff for his share will stand and the plaintiff has estimated his share value at Rs.20,000/ - and he has paid court fee on that amount and therefore I find that the plaintiff has paid the correct court fee as matters now stand.Issue found accordingly.( Para 3 ). The petitioners filed an application for review of the above finding of the trial court.The trial court dismissed that application for review holding that there was no error apparent or patent mistake in the order sought to be reviewed.In this Civil Revision the petitioners have challenged both the above orders of the trial court.

(2.) SHRI P.C.Chacko,the learned counsel for the petitioners,contended that the plaint is liable to be rejected under O.7 R.11 of the Civil Procedure Code when the relief in a suit for accounts is undervalued.According to the learned counsel,the plaintiffs in this case were aware of the profits of the firm and hence the trial court should not have accepted the valuation put by the plaintiffs in the plaint.It was further contended that,at any rate,when the claim in the plaint is that the plaintiffs are entitled to get more amounts than what has been stated in the balance sheet the trial court ought to have held that the plaint was under valued.

(3.) S .36 of the Kerala Court Fees and Suits Valuation Act,1959,for short the Court Fees Act,reads: