MOD HAYA Vs. VASANTHA

JUDGEMENT

(1.) IN these petitions the writ petitioners seek review of my common judgments in the writ petitions. The writ petitions were filed for quashing Ext. P4 order in WP (C) No. 24366 of 2004 and Ext. P5 order in WP (C) No. 30952 of 2004 passed by the learned Subordinate Judge respectively in O. S. Nos. 107/01 and 422/02. Both these orders were passed on preliminary issues raised in the suit regarding the maintainability of the suit and the propriety of valuation and sufficiency of court fees. The suits were filed primarily against the respondents herein who were legal representatives of one G. Aniruddhan, a Government Contractor. The case of the plaintiffs was that Sri. Aniruddhan was indebted to them and that upon the demise of Sri. Aniruddhan all his rights and liabilities devolved upon the respondents being his legal heirs and representatives. It is averred in both the suits that Sri. Aniruddhan was indebted to several other creditors also and therefore repayment could not be realized from the defendants immediately. The petitioners came to know that the respondents defendants were making demands to screen the assets which they had inherited from Sri. Aniruddhan from the reach of creditors. Demand for the amount due and for a ratable distribution of the assets which the defendants had inherited from Sri. Aniruddhan was made on the defendants but without success. Making such averments the suits were filed seeking substantially the following prayers. "an Administrator-cum-Receiver be appointed for determining the assets and liabilities of late G. Aniruddhan and for settling the amounts due to various creditors of Aniruddhan including the plaintiffs under a settlement of accounts, empower the receiver to assume possession of the assets immediately, direct him to sell such assets and to utilize the sale proceeds for payment of amounts due to the plaintiffs and the other creditors of late Aniruddhan. "

(2.) THE suits had been valued under Section 39 read with section 16 of the Suits Valuation Act as administration suits falling within the ambit of Rule 13 of Order 20 C. P. C. However, in the suits, precise amounts had been claimed to be due to the plaintiffs from late Sri. Aniruddhan. The learned Subordinate Judge on considering the preliminary issues under the orders which were impugned in the writ petitions found that the suits were not maintainable since they had not been properly valued. According to the learned Sub Judge since precise amounts were claimed to be due to them from the estate of Sri. Aniruddhan it was obligatory that the suits be amended and court fee ad valorem be paid under Section 22 for the amounts claimed. The learned Subordinate Judge relied on the judgment of this court in Brothers Chitty Fund v. Jacob Mathew (2004 (1) KLT 64) for the view he had taken in the impugned orders and I under my common judgment presently sought to be reviewed referred to that judgment the judgment of another Division Bench of this Court in Vijayarajan v. Kalavathy, (2006 (2) KLT 470) and also the judgment of the Bombay High Court in Abdul Rahim v. Lingappa Vaijappa, AIR (30) 1943 Bombay 273 and held that the Subordinate Judges view had considerable support of the judgments of this court in Brothers Chitty Funds case and in Vijayarajans case. It was accordingly held that the plaintiffs are not entitled to institute an administration suit without any scope for enquiry as to what is the amount due to them from the estate of the deceased debtor Aniruddhan. Nevertheless, I also held that the view of the learned Subordinate Judge that an administration suit is not maintainable in law is wrong. I held that administration suits are contemplated in law and will be maintainable in law. But whether such suits should be decreed directing appointment of administrator or receiver is a matter to be decided on the basis of the legal evidence which comes on record in the suits. I therefore disposed of the writ petitions permitting the petitioners to file application for amendment of the suits in any manner they needed, so that they will be able to maintain the suit as administration suits not only in law but also on facts, so that they can aspire for the decree sought for in the present suit itself. I had directed and had observed that once amendment is made the question of propriety of valuation and sufficiency of court fees will be decided by the court with reference to the reliefs sought for in the plaint after the same is amended.

(3.) REVIEW of my judgment is sought for on various grounds raised in the R. P. memorandum and I have heard Sri. Abraham George Jacob, advocate on behalf of the counsel for the petitioner and Sri. P. Fazil, counsel for the respondents extensively on the various grounds.