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PALLATH ENTHEENKUTTY, S/O.MUHAMMED versus PALLATH KUNHAPPA, S/O. MUHAMMED

High Court of Kerala

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PALLATH ENTHEENKUTTY, S/O.MUHAMMED v. PALLATH KUNHAPPA, S/O. MUHAMMED - CRP No. 348 of 2003 [2006] RD-KL 2564 (5 December 2006)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRP No. 348 of 2003()

1. PALLATH ENTHEENKUTTY, S/O.MUHAMMED,
... Petitioner

Vs

1. PALLATH KUNHAPPA, S/O. MUHAMMED,
... Respondent

2. PALLATH MAMMALIKUTTY, S/O. MUHAMMED,

3. PALLATH THITHEEMU ALIAS KUNHUMOL,

4. PALLATH KUNHIPPATHUMMA, D/O. MUHAMMED,

5. PALLATH SAINABHA, D/O. MUHAMMED,

For Petitioner :SRI.T.KRISHNAN UNNI

For Respondent :SRI.K.RAMACHANDRAN

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

Dated :05/12/2006

O R D E R

M.SASIDHARAN NAMBIAR, J.

C.R.P.NO.348 OF 2003 (F) and C.R.P.636/03 and 637/03

Dated this the 5 th day of December, 2006.

ORDER

Plaintiff in O.S.329/98 is the petitioner in C.R.P.348/03. The second defendant there in is the petitioner in C.r.P.636/03 and 637/03. C.R.P.636/03 and 637/03 were filed challenging the dismissal of I.A.152/03 and I.A.151/03. I.A.151/03 is an application to receive additional written statement. I.A.152/03 is an application to receive counter claim under Order VIII Rule 6 of code of civil procedure. Both the applications were dismissed by the learned Munsiff for the reason that the suit is of 1998 and the High Court had already directed to include the suit in the list of target cases and if it is allowed it cannot be disposed as directed and therefore the applications cannot be allowed. C.R.P.348/03 was filed challenging the order of the learned Munsiff in I.A.220/03. I.A.220/03 is an application filed by the petitioner in the other C.R.P namely the second defendant, to frame an additional issue. As per the order, learned Munsiff framed additional issues 1 to 4 including the question whether the court has pecuniary jurisdiction to try the suit and whether the suit is maintainable for partial partition and what is the correct identity and description of plaint schedule properties. C.R.P.NO.348 OF 2003 (F) 2

2. Learned counsel appearing for petitioner and respondents were heard.

3. Arguments of the learned Advocate Sri. T. Krishnanunni, appearing for plaintiff/petitioner is that learned Munsiff should not have framed the issue regarding the pecuniary jurisdiction and maintainability of the suit for partial partition and on the identity of the properties after the evidence was recorded and plaintiff need only value the property, on the value of the share claimed by the plaintiff and therefore the order framing additional issues is to be quashed. The learned counsel argued that as the suit is one for partition only fixed court fee has to be paid under Section 37(2) of Kerala Court Fees and Suits Valuation Act, 1959, and when joint possession was alleged , the market value has to be determined as provided under section 7 of the Act and it has been correctly shown and therefore the impugned order is to be set aside. Learned counsel also argued that at the fag end of trial and after evidence was recorded, learned Munsiff should not have framed additional issues and relegated the parties to compelling further evidence to be adduced and the order passed by learned Munsiff is to be quashed. C.R.P.NO.348 OF 2003 (F) 3

4. Learned counsel appearing for petitioner in the other revisions argued that on the pleadings the issues framed by learned Munsiff arise for consideration and issues can be framed at any stage, and if the court finds that there is pleadings and the issues are omitted to be framed, additional issues can be framed even at the time of hearing arguments and therefore there is no reason to interfere with order. Learned counsel also argued that the dismissal of application to receive additional written statement and application to receive counter claim are not based on merits but for the reason of delay alone that too stating that High Court has directed court below to dispose the suit and the order passed is therefore is to be quashed.

5. On hearing learned counsel appearing for petitioner and respondent it is clear that the learned Munsiff has not considered the applications filed by the second defendant to receive the additional written statement or counter claim on merits. A counter claim could be preferred by a defendant at three states of the suit. Defendant is entitled to raise counter claim, as of right, along with the written statement. Subsequent to the filing of written statement a defendant C.R.P.NO.348 OF 2003 (F) 4 is entitled to raise counter claim by filing an additional written statement as provided under Order VIII Rule 9 or by amending the written statement as provided under Order VI Rule 17 of code of civil procedure. True, in the latter cases, leave of the court has to be obtained and the cause of action for the counter claim shall arise before the date fixed for filing the written statement. As learned Munsiff has not considered the question whether the petitioner is entitled to file additional written statement or counter claim on merits, orders passed in I.A. 151/03 and 152/03 are quashed and learned Munsiff is directed to pass appropriate orders in the application after hearing the parties.

6. There is force in the argument of the learned counsel appearing for plaintiff that question of pecuniary jurisdiction and sufficiency of the valuation and court fee should have been decided by the court below before the evidence was adduced and the issues should not have been raised after recording of the evidence. It is also true that in a suit for partition when joint possession is alleged, plaintiff has to pay only the fixed court fee as provided under Section 37(2) and suit has to be valued on the share of the plaintiff after C.R.P.NO.348 OF 2003 (F) 5 determining market value as provided under Section 7. As learned Munsiff has not considered the question whether the issue on pecuniary jurisdiction and Court Fee are to be framed, after recording of the evidence, the order in I.A.220/03 is also quashed. Learned Munsiff is directed to dispose all the applications after hearing both parties. As the suit is of 1998, learned Munsiff is directed to dispose of the application expeditiously and also the suit without further delay and in any event within four months from the date of receipt of a copy of this order. M.SASIDHARAN NAMBIAR,

JUDGE.

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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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