KUNCHU Vs. VASU MASTER

JUDGEMENT

(1.) PLAINTIFFS in a suit O. S. No. 71/96 on the file of the munsiff's Court, Parappanangadi are the revision petitioners. They laid the suit seeking a declaration that an assignment deed and a purchase certificate were obtained by the defendants fraudulently, without notice and in derogation of the specific legal provisions. As such the said documents are void ab initio and not binding on the plaint schedule property. They also sought for other consequential reliefs. They paid the court fee under Section 25 (b) of the kerala Court Fees and Suits Valuation Act. The defendants raised an objection regarding the valuation and also the court fee paid thereon. Since the court below did not decide this question as a preliminary objection, the defendants preferred c. R. P. No. 130/2001 which was disposed of by order dated 12/1/200 1. The operative portion of the order is extracted in paragraph 8 of the order impugned in this revision. Thereafter, the court below raised specific issues as to whether the court fee paid is correct and also whether the pecuniary jurisdiction shown in the plaint is correct and whether this court has pecuniary jurisdiction to try this case? these issues were tried and the court below held that the court fee paid under section 25 (b) is not correct and that the plaintiffs are liable to pay court fees under Section 40 of the Act. In that connection it also observed that the legal effect of the disputed purchase certificate cannot be taken away without setting aside the same. On the question regarding the pecuniary jurisdiction of the court the court below held that the market value for the purpose of Section 40 of the Court Fees Act has to be calculated as per Section 7 (3) (a) of the Act and that the value shall be which the property will fetch on the date of the institution of the suit. The Commissioner was found to have calculated the market value of both the A and B schedule properties at the rate of Rs. 2,000/- per cent. Thus A schedule property has to be valued at the rate Rs. 54,700/- while that of the B schedule is Rs. 16,700/ -. However, the valuation of the house stood excluded, as the plaint A schedule did not include the house. Regarding the value of the other items includable it was found that it will exceed rs. 1,00,000/- which is beyond the jurisdiction of the Munsiff's Court. Accordingly the court below found that it has no pecuniary jurisdiction to entertain the suit. In the result, I. A. No. 16/2001 filed by the defendants was allowed holding that the plaintiffs are liable to pay the court fees under section 40 of the Court Fees Act and that the court has no pecuniary jurisdiction to entertain the suit. The plaint was liable to be returned to the plaintiffs under Order VII Rule 10 (A) of the C. P. C. It was also directed that intimation may be given to the plaintiffs on the decision of the court to return the plaint under Order VII Rule 10 (A) of the C. P. C. The said order is under challenge in this revision.

(2.) BEFORE going to the merits of the contention regarding the finding on the aforesaid issues an objection was raised regarding the maintainability of the C. R. P. itself. It is therefore necessary to decide the question of maintainability of the C. R. P. and only if it is found that this revision is maintainable, further question on the merits of the contention raised will arise for consideration.

(3.) FROM the reading of the above provision it can be seen that for completion of the procedure as contemplated under Rule 10-A an intimation has to be given to the plaintiff by the court. If it is of opinion that the plaint should be returned, once an intimation is given to the plaintiff, then the plaintiff may make an application to the court below specifying that he proposes to present the plaint after its return and praying that the court may fix a date for appearance of the parties in the said court and requesting that notice of the date so fixed may be given to him and to the defendant as prescribed under Sub Rule 2 of Rule 10-A of Order VII. Where an application is made by the plaintiff, the court below, before returning the plaint and notwithstanding that the order for return of plaint was made by it on the ground that it has no jurisdiction to try the suit, has to fix a date for appearance of the parties in the court in which the plaint is proposed to be presented, and to give to the plaintiff and to the defendant notice of such date for appearance. This is what is prescribed under Sub Rule 3 of Rule 10-A. As per Sub Rule 5 of Rule 10-A where the application made by the plaintiff under Sub Rule 2 is allowed, the plaintiff shall not be entitled to appeal against the order returning the plaint.