KUNCHU Vs. VASU MASTER

JUDGEMENT

(1.) Plaintiffs in a suit O.S. No.71/96 on the file of the Munsiffs 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 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 12-1-2001. 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. In 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 Munsiffs 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 contenti on 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.) Order XLIII, Rule 1 of the C.P.C. deals with appeals from orders and as per the said order, an appeal shall lie from the following orders under the provisions of Section 104, namely :