MUHAMMEDALI Vs. AMINA KUTTY

JUDGEMENT

(1.) The above original petition is filed challenging Ext.P11 order in IA No.3 of 2024 in O.S. No.4 of 2021 on the file of the Sub Court, Manjeri wherein Ext.P9 application seeking to amend the valuation portion in the plaint filed under Order VI Rule 17 of the Code of Civil Procedure was dismissed.

(2.) The brief facts necessary for the disposal of the original petition are as follows: The petitioner herein is the 2nd plaintiff in O.S. No.4 of 2021 on the file of the Sub Court, Manjeri, a suit filed seeking fixation of boundary between the plaint A and B schedule properties, permanent prohibitory injunction restraining trespass and for other reliefs. The plaint was subsequently amended by filing I.A.No.252/2013 incorporating a prayer for recovery of possession of plaint A schedule on the strength of the plaintiff's title, in the event it is found that the plaintiffs have lost possession of the same. Petitioner took a contention that the additional relief of recovery of possession incorporated by way of an amendment is only an ancillary relief as it depends upon the main relief. The Trial Court overruled the contentions of the plaintiffs and passed Ext.P7 order finding that the relief of recovery of possession is chargeable with the highest fees and therefore the plaintiffs have to pay court fee as per Sec. 30 of the Kerala Court Fees and Suits Valuation Act 1959 (for short the 'Act 1959'), and the petitioner was directed to take steps within 20 days to amend the valuation portion of the plaint and pay court fee for relief of recovery of possession specifying the manner in which the market value of plaint A schedule is assessed. The said order was challenged by the petitioner in OP(C) No.3103 of 2016 before this Court. This Court confirmed the said order as per Ext.P8 order and the plaintiffs were directed to remit the court fee on the relief of recovery of possession and clarified that plaintiffs can value the property based on the market price as envisaged in the impugned order and in terms of Sec. 7 of the Act 1959. Later on, the petitioner filed IA No.3 of 2024 seeking to amend the valuation portion in the suit contending that certain mistakes had crept in while computing the same. Petitioner contended that relief 'C' in respect of recovery of possession has to be valued on the basis of the rental value of the building. To Ext.P9 application filed as IA No.3 of 2024, respondent No.2 filed Ext.P10 objection and the Trial Court by Ext.P11 order rejected the request for amendment. It is the said order that is challenged in this original petition.

(3.) Petitioner submits that the valuation incorporated is a mistake and is entitled to rectify the same. It is contended that the building situated in 'A' schedule property are comprising of commercial shop rooms and therefore the valuation of the building has to be taken u/S.7(3) of the Act 1959 for the purpose of the valuation of the suit.