VARGHESE Vs. BENEDICT ALIAS BIJU

JUDGEMENT

(1.) The writ petition is filed seeking the following reliefs.

(2.) Petitioners are the defendants 2 to 6 in O.S No.175 of 2007 on the file of the Sub Court, Kochi. suit is one for partition, and the first respondent is the plaintiff. Second respondent is the first defendant in the suit. In the suit over the plaint property having an extent of 10 cents, the first respondent/plaintiff claimed partition of 10/24 share on the basis of purchase effected by the sharers of the property. Claiming to be in joint possession of the property, fixed court fee was paid by the plaintiff under Section 37(1) of the Kerala Court Fees and Valuation Act, hereinafter referred to as Court Fees Act. The contesting defendants in their written statement among other contentions disputed the valuation of the suit and also the court fee paid as inadequate. A petition was filed by the contesting defendants seeking consideration of the issue regarding payment of court fee preliminarily. Ext.P2 is that application. First respondent/petitioner filed Ext.P3 counter affidavit to Ext.P2 application. The learned Sub Judge after hearing both sides dismissed Ext.P2 application filed by the petitioners/defendants 2 to 6 holding that the challenge canvassed as to the insufficiency of court fee in respect of the reliefs claimed in the suit is meritless. Ext.P4 is that order. Propriety and correctness of that order is challenged in the writ petition invoking the supervisory jurisdiction vested with this court under Article 227 of the Constitution of India.

(3.) I heard the learned counsel for the petitioner. Perusing Ext.P4 order, I find, the court below has proceeded to consider the question of adequacy of court fee payable on the suit claim only on the basis of Ext.P2 application filed by the defendants 2 to 6 in the suit. In Ext.P2 application, the defendants have specifically contended that in the written statement filed, among other contentions, they have also challenged adequacy of the court fee paid on the suit claim. When that be so, the mandate under Section 12(2) of the Court Fees Act demand consideration of that question after casting of issues in the suit including the one raised whether court fee paid on the suit is adequate and sufficient. However, without framing an issue on that question, the court proceeded to consider the question of sufficiency of court fee and entered a finding as evidenced by Ext.P4 holding that the challenge raised by the defendants is devoid of any merit. On that solitary ground itself, Ext.P4 order cannot be sustained, because, it amounts to jurisdictional infirmity. The learned counsel for the first respondent/plaintiff contended that a writ petition to challenge Ext.P4 order invoking the visitorial jurisdiction of this court under Article 227 of the Constitution of India is impermissible as a revision against the order is the proper remedy. I cannot accept that submission. After the incorporation of the amendment to Section 115 of Code of Civil Procedure, under Act 46 of 1999, no revision would lie unless the order sought to be revised, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings. So much so, challenge against Ext.P4 order by way of writ petition is proper and correct. Then the larger question involved in the case is whether the court below was justified in holding that the payment of court fee in a partition suit with respect to Section 37(1) of the Court Fees Act is applicable to only in the case of joint family property. That was the view taken by the court below to hold that the challenge canvassed by the defendants is meritless. Section 37(1) of the Court Fees Act applies in a suit for partition where separate possession of a share of joint family property or of property owned, jointly or in common, and it does not distinguish caste or community. Admittedly the plaintiff is a purchaser of shares of the property belonging to some of the sharers having right over the plaint property. He can get possession over the property only by way of partition and separate possession. That being so, the view taken by the court below for negativing the challenge canvassed by the petitioners/defendants on the question of court fee payable on the suit claim is patently erroneous and unsustainable. I direct the court below to frame issues on the basis of the contentions raised in the suit, if not already done. If at all any contention is taken by the defendant as to the inadequacy of the court fee paid on the suit claim, an issue on that question has to be raised, and, then, to decide it preliminarily postponing the consideration of other issues. Setting aside Ext.P4 order, the court below is directed to consider the question of payment of court fee afresh taking note of the provisions under Section 37 of the Court Fees Act, observations made above, and also in accordance with law. Writ petition is disposed as indicated above.