Joy vs Wilson
2021 Latest Caselaw 22864 Ker

  OP(C).83/21                       1

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                   THE HONOURABLE MR.JUSTICE V.G.ARUN
  TUESDAY, THE 23RD DAY OF NOVEMBER 2021 / 2ND AGRAHAYANA, 1943
                          OP(C) NO. 83 OF 2021
PETITIONER/S:

     1      JOY
            AGED 56 YEARS
            S/O. JOSEPH, KUZHIPPILLIL HOUSE, ADIMALY KARA,
            ADIMALY P.O., MANNAMKANDAM VILLAGE, DEVIKULAM TALUK.

     2      ANI,
            AGED 27 YEARS
            D/O.JOY, KUZHIPPILLIL HOUSE, W/O. JIMMY, NJALIYAN
            HOUSE, KOTAMAM KARA, NILEESWARAM P.O., KALADI
            VILLAGE, PERUMBAVOOR TALUK.

            BY ADVS.
            GEORGE SEBASTIAN
            SRI.JOHNSON K.KURIEN



RESPONDENT/S:

            WILSON
            AGED 60 YEARS
            S/O. PAULOSE, KUDIYIRICKAL @ VARIKKATT HOUSE,
            MACHIPLAVU KARA, MACHIPLAVU P.O., MANNAMKANDAM
            VILLAGE, DEVIKULAM TALUK, -685561.

            BY ADV SRI.G.SREEKUMAR (CHELUR)




     THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 23.11.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
   OP(C).83/21                                 2

                               V.G.ARUN, J.
                -----------------------------------------------
                          OP(C).No.83 of 2021
                -----------------------------------------------
             Dated this the 23rd day of November, 2021

                                     JUDGMENT

Petitioners are the plaintiffs in O.S.No.251 of 2019 on the files of

the Munsiff's Court, Adimaly. The suit is filed for permanent prohibitory

injunction restraining the respondent/landlord from evicting the

petitioners/tenants from the plaint schedule building otherwise than in

accordance with law. In the suit, the petitioners moved an

interlocutory application seeking transfer of the case to the

Commercial Court on the premise that the dispute falls within the

definition of 'commercial dispute' under Section 2(c)(vii) of the

Commercial Courts Act ('The Act', for short) and the specified value is

above Rs.3 lakhs, the market value of the plaint schedule building

being more than Rs.25 lakhs. The respondents filed objection

contending that the relief sought is only for prohibitory injunction

against illegal eviction and as such, the dispute is not a commercial

dispute and further that the market value of the plaint schedule

building cannot be the basis for determining the specified value under

Section 12 of the Act. By Exhibit P5 order, the trial court rejected the

prayer for transfer of the suit. Aggrieved, this original petition is filed.

2. Indisputably, plaint schedule property was leased out to the

petitioners for conducting business. As per the definition of

'commercial dispute' in Section 2(1)(c)(vii) 'a commercial dispute', the

dispute should be one arising out of an agreement relating to

immovable property used exclusively in trade or commerce. The

meaning of the words 'agreements relating to immovable property

used exclusively in trade or commerce' was considered by this Court

in C.R.P.No.146 of 2021. After detailed precedential survey, it was held

that the dispute should be with respect to agreements relating to

immovable property 'being used' in trade or commerce and not,

property intended 'to be used' for such purpose. It was also held that

in a suit for injunction simpliciter, it is the value of the relief claimed

and not, value of the property involved, that determines the

jurisdiction. Finally it was held that having accepted the claim and

numbered the suit, the plaint can only be returned under Order VII

Rule 10 of CPC, since the power to transfer the suit to the Commercial

Court is vested with the Commercial Appellate Division of the High

Court under Section 15(5) of the Act. The legal position being as

above, I find no infirmity in the impugned order.

In the result the civil revision petition is dismissed.

Sd/-

                                            V.G.ARUN, JUDGE
vgs



                      APPENDIX OF OP(C) 83/2021

PETITIONER EXHIBITS

EXHIBIT P1             A TRUE COPY OF THE PLAINT IN
                       O.S.NO.251/2019 OF THE MUNSIFF'S COURT,
                       ADIMALY.

EXHIBIT P2             A TRUE COPY OF THE WRITTEN STATEMENT ALONG
                       WITH COUNTER CLAIM IN O.S.NO.251/2019 OF
                       THE MUNSIFF'S COURT, ADIMALY.

EXHIBIT P3             A TRUE COPY OF I.A.NO.3/2020 IN
                       O.S.NO.251/2019 OF THE MUNSIFF'S COURT,
                       ADIMALY.

EXHIBIT P4             A TRUE COPY OF THE OBJECTION FILED BY THE

RESPONDENT I.A.NO.3/2020 IN O.S.NO.251/2019 OF THE MUNSIFF'S COURT, ADIMALY.

EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 1.12.2020 IN I.A.NO.3/2020 IN O.S.NO.251/2019 OF THE MUNSIFF'S COURT, ADIMALY.