Karnataka High Court
Abdul Salam vs The District Automobile Workers on 3 November, 2009
Equivalent citations: 2010 (4) AIR KAR R 1046
Author: Ashok B.Hinchigeri
Bench: Ashok B.Hinchigeri
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 3RD DAY OF NOV'EI\/iBEFi_2€5(')_9:..
BEFORE
THE HONBLE MR. JUSTECE A;SHOf§ V
WRIT PETITION NO9764 OE 2:358
WRIT PETITION NO.98.'Z8«OF 20Q8'{G_"M-CPCV]
W.P. 9764 g 2008
BETWEEN:
Abdul Salam _ _ _, = :
8/0 late Sabjf-an _ , '
Aged abou1'5O_'yé'a1"sV' _ _ _ , '
Occ:Busine~sj.s >}_}\?iA:Vw Nati.oi'1é1i._Tyfes
lsl
Opp. to DurTg3;'VI.,o&<:ige _ *
Shinloga city» * M " . ...Petitioner
. Prakash. Adv.)
~ ~ '..FVhoD.i_sirict Automobile Workers
*As=s_oc12I¥Io:n ®, Shlmoga
' = Re'p_§'_"by'?:i£s Secretary
Sri.S;'i,..Dasappa S/o S.Lir1gappa
4' Aged'é1bout 76 years
0 private bus stand. Shimoga.
Ismail
S/0 Rasood Sab
Aged about 60 years, Occzfjriver
R/0 31"" Cross. Rammarzohar
Lohia Exm.. Shirnoga City. ..,Respo11der1t.s
(deleted vide Court o1'dc~:;' dated 7.10.2009}
2
(By: Sri K.M.Nataraj. Adctl. Advocate Generai
and Sri Hiianumantharayappa, HCGP for S..t_a'te
Sri Kflanumantharayappa, Adv, for R~1]".
This Wm Petition filed under Articie
the Constitution of India praying to quash..the__"o_rder dated 2
3.6.2008 passed by the learned P1ri;'"C.i.Vil J_4udge"i{_S1'.Dn_§'}., E2;
C.J.M.. Shimoga on i.A.No.3 in O;S.i\ioy.y2ji7/2002. pIrod_uc.:ed
as Anr1exure--I-I and etc. " .
W.P. 9878[ 2008
BETWEEN:
1. T.Ver1katesh Rao '
S/o T.Nagesh Rao _
Aged about'52 yea'fs"' ' f _ _
occ:Businé:%S}"' : A '
2. 'I'.LoI<£e4'sh:.-Ra.oV.':"'--- . V-
S/0 T.i'€.2ig'eShV Rag" _ " "
Ageti abyciut 45': 'yea:~'s_ "
Qoc:_BIisin"r:§=.s__ 4' ' vi
3. T.i\/Ia_llesha;Rao ,
S/o T."Nagesh'._Rao '
; Aged about. 50 years
*5;,OoC:Busine'ss. .. _____ H x
Aiiare R/'oyV'e&fji:atesh Auto Shop
' ~SCf}_Ot€1'.,Ni€i§C}1EtfliC~; 3?" Cross
Garden Shimoga City. ...Petitioners
. V . (By: Sri S.V.Prakash, Aciv.,)
« ' 'I'he District Automobile Workers
Association ®. Shimoga
Rep. by its Seo1'eta1'y
Sri S.L.Dasappa S/o S.Lingappa
Aged about 76 years
R/o private bus stand, Shimoga.
2 N .A.Gajer1dra
S/o Amiappa
Aged about 48 years
R/o Basha Sab Compound
2"" Cross, Ashoknagar, Shirnoga.
(deleted vide Court order datedfb.10.2_O'O'9'}---'if _ 4'
3. Ravikumar
S/0 not known V
Aged about 40 years, VOc;ea:Busi-mess _ .
Apsara Motor Service St:an'd Booking-Ageiit
Private Bus Stan ' t 7
Shimoga. It " ~ ._ A. . . .Res'povndeni:s
(By: Sri K. M. Natarajj "General
and Sri H.Hanumantharayappa, HCGP for State
Sri K.Hantimanitharayappa.{;*\dy,f.' for R1
R--3 sfiifvsfiii i
This Writ:_P;et.itio:i ..fiieid..1iiidei*§Artiele 226 and 227 of
t.he Const-it,L_1ti'o_rt o'f:;:A.§I1di--a prayii'igmi'o quash the order dated
3.6.2008 passedby'3the_iearned*Pr1. Civil Judge {Sr.Dn.), 8:
C.J.M., <._sm'mog'a in O.S.No.219/2002 produced
as AnneXure~H to,tl'*1e.fwrit-,pet.i'tion and etc.
ThesettéPetitionseofriing on for Dictation this day,
_ t.he ,C§Qu1"?;~ made "'i;hte____foHowing:
ORDER
, ¥;iza:ir'«t§;tPét1:ion Nos.9764/2008 and 9878/2008
-- arise' f1*o1n.'4identical suits and as the issues to be varisiwered in both the Cases are the same, the two are clubbed. heard together and are being " disposed of by this common order. The facts are being narrated with reference to Writ Petition No.9764/2008.
fifiii 4
2. The petitioner has raised the challengeto the order, dated 3.6.2008 [Annexurealfi passed by the"
of the Principal Civil Judge {Sr.Dn.] Shimoga on l.A.No.3 in O.S.l\lo..'2:-i'7'/ZOQSZA. }
3. The respondent'i'i"LFo.1 their'v:st:jit..,.seeking--.i"
the relief of declaration, for pnosslession of the schedule propertjtaiiid ' The petitioner [defendant No.ls.in the"st;ii:t) statement denying that the sale of the Nos.2 and 3 in his fa;¢~t_ou~1" ---petitioner has also raised a specific 'pl_ea_ lljoa'1'a_g'raph No.11 of the written stateirnent that "the-____oourt fee paid is inadequate. The ~;~;t1"n."3_VVand.asu'f3s.tance of the objection with reference to thfllh 'Court that the suit ought to have been valued as per. provisions contained in Sections 24(a) and it :fl_*notl"<--.24[d) of the Karnataka CourtmFees and Suits Valuation Act, 1958 (K.C.F. and SV. Act) as was done by the first respondent--plaintiff. Q3?-'$2.
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4. Based on the rival pleadings, the Trial Court framed seven issues. The matter came to be povstedllfor the first respondenf:--p1aintifi's evidence and thereafter it appears that__the case"
adjourned from time to time for7his1'_'evidence _'The:"eas1-3:
was posted for the eXaminatien--in¥Chief _a1jvd"«thvereafter = L' crosswexamination of {I§?§v\.l§\/'I) on 27.6.2007 and On 19.7.2007, the petitioneremed 'the Court to frame the 51". ' 'wiiiethuéégj 'piainr.g_'}_'p"ro'ues that the District ' * tau:-¢rnj'aa_iie.V'i;vgfi:¢rs Association is still in l existence'.aad"'ihelsecrei:ary S.L.Dasappa has loc'.iis'st=ar1a-i and authority iofile sail'?
'Vljleiher the plaintiff proves that the sail is properly valued and the Court" fee ' .".".jpa'id on the plaini: is su*.[]icient? Whether the plaintiff proves that the suit" is filed well within time?"
5. Or: the 28.8.2007, the Trial Court heeded to the request of the petitioner and framed the aforesaid sought additional issues. Thereafter, the petitioner filed 6 I.A.No.3 on 20.9.2007 requesting the Trial Court._...to try additional issue Nos.2 and 3 as preliminary iss'u:es'Lp:'--_yOn granting a number of adjournments. the _ last rejected I.A.No.3 by its :order,. A' Aggrieved by the aforesaid instituted.
6. Sri counsel for the petitioner submitps in Section 11 "before to be liberally coiistruedv of the recording of €Vid€I1:CA€Z documents are produced and marketdl; _th"e_ etfidence can be said to have been re<toI§ded~ completelyiy. There is no legal impediment in answerivntgg court fee issue first any time before the closure o'f-eyidielnce.
A. - Z T he learned counsel further submits that if uyélthebregislature had in mind, the cornmencement of the evideiice or trial, it would have said so. He brings to my notice the proviso inserted to Order 6 Rule 17 of C.P.C., wherein the words "the trial has commenced" are used. commitment of the accused. The record consists of the oral evidence recot'ded_ under su,b--s.[-4) of S.207A documents referred to in S. 1 73%), tit' would be dgfficult vto""regarId documents which czlfe which are adn'u's__sible"A.ti5étho1:tt'u'd' "eoidence" ntedrzirig-hoj' of 8.20 7A c:tnd_ not the ~ _ 2
8. Sti_§fi"akas'h the decision of this KARNATAKA (R) v. BALAKRISHNA 9911.12 1999 KAR 2930 for buttressirig h'is.vs-ubrnission that Section 11 mandates azil, qt1Aestioh's""'fe1ating to court fee be heard and decide;d..before"_jthe evidence is recorded. .' 'Sm' Prakash has aiso reiied on the decision of tE1'e~_E--Ioh'b1e Supreme Court in the case of BALDEV taifioa: 3: ons. v. MANOHAR SINGH AND ANR., dd 'deported in AIR 2006 SC 2832 to canvass the point that the commencement, of trial must be understood in the limited sense, as meanir1g, final hearing of the suit, 10 writing the statute as such. He submits that the petitioner has waived his right and shown acquiescence. Nothing prevented the petitioner from re<:;uesti.y1i'g_ the Court to take up the additional issues first,....?_)nefo_r'e';~the first respondent entered the witness box,V__i*ie. aifsot"take«s_p exception to the petitioners conduct in matter.
12. Sri K.M.Natara'j";=:"t»he hdditiorzald Advocate Genera} has 'made theifollowing subrnissions:
the payment of court finaiity at any stage of the Under Section 11(1) of the S.V. Act', the decision on the ' payable is always subject to review further review and correction in the .1' manner specified in subsections 2 to 5 of Section 1 1.
b) Under Section 11(2) of the K.C.F. and S.V. Act, once a piea is taken in the written Egg.
1] statement. the court fee payable has to be determined.
If the Court proceeds to record without giving its decision on payable. it does not so eolieeted or adsdaeed haste be»'\)iri§)ed oigti." F or the fault of the a 'shoviglld not suffer any it1efenvu%ini;eriee_._'ffxeeording to the iearnesd AdditioI_ta.1 L/General, in a ea_se _t4hedTriVa'I""Court may have to bVe"vd*ireete'dr'tvo__ iirst pass an order on the 'court Vfeexpagraiole and thereafter resume the at d it suitdndproeeedings at the stage at which it was '«.i13terrupted.
Additionai Advocate General submits " . that the Division Bench decision of this Court in the ease of VEIEIRAGOUDA 8:. OTHERS V. SHANTAKUMAR @ SHANTAPPAGOWDA, reported in {LR 2009 am:
]') 46¢:
KAR 887 is squarely applicable to the facts of this Case.
12. Having regard to the importance of.._ the matter, this Court also thought it fit to other learned members of the bar to join r1¢b}i:g;
they so desire.
13. Sri Rarnesh Chjandra;__ the 1ear;;¢a has made the following subnii:s:si.onst '
a) The K.C.F'. .ana S_;'\h'/t fiseai""statute. are to be construed rule, the issue of court _ has.,i;-ottbetddtecided first, even if it is the mpged ejo.e'stion of fact and law. The partition in an exceptional category, where a on whether a party is in joint " vdpossession or not has to be delivered only on the eonciusion of the trial. Therefore, in partition suits, the evidence required to be collected is the same for answering the issue over court fee and other issues.
Qfiii.
b3 13 The learned counsel brings to my no£iOe"'»the iudgment Of the }~IOn'ble Supreme Case of ORISSA STATE CORPORATION, Jmptgn OF INCOME TAX, reported' :11 i;\lIh{.j1l9V9Q'3 sic:
1388. The relevant'-..par_agraph_of the said judgment is 'extracted V E1ere;inbte.IOw:
"Moreove!fa';fiseal...statiiteTshall have to of the 1: _ "-therein and not dehors ' - jfite s:$:E'ifne"."._No ought to be added '-- ' andffenly.:the"l-ariguage used ought to be tconsid'ered.°::.o'as to ascertain the proper meaning" and intent of the legislation. zThe" 'Court is to ascribe natural and 'v'«or'dinary meaning to the words used by Legislature and the Court ought' not, «blunder any Circumstances, to substitute its own impression and ideas in place of the legislative intent' as is available from a plain of the reading statutory provisions."
fifiiri.
ix) I\J feel aggrieved. it is difficult to appreciate ..... .. "
{(1} Sri Pal submits that this jurisdiction under Article 227' of the of india is invokable only for correcting-»tlh:e.l eiirors .4 of law, resulting in injustice to th-epiarties,' 0
17. Sri Raghupathyi t1:1:é'~~.]earned. that once the recorcling oi'é.the'e'vitlence has' begun, the insistence for answeringythe-Vcourt.iee.is_sue first is not tenable. So 'as the issue'«.of'vicjourtiiele does not touch on the juristiic-*~iot1_o'f_:"th_e' Court, the trial cannot be halted answering the court fee issue. l~Ie,,.£_3i$lsoir.brings" notice this Court's decision in the it of .:A,.MADHAvA I-IEGIDE v. RAJENDRA reported in ILR 2000 KAR 1267 «V Whe'1"ein.AVitxis held that the issue relating to court fee V' skis-ll have to be tried as preliminary issue.
18. On hearing the learned advocates, the question that falls for my consideration is:
figii 24 paid. if/' the plaint be not amended or if the deficitjee be not paid within the time allowed, the plain: shall be rejected and the court pass such order as it deems just rega-rc_i:1ng'.I' costs of the suit.
20. The perusal of the afore;etS{tv1'aet.e.d*provisior1s reveal that once the plea is-._t_.aken._bl'y his written statement that thle*su'ojectl off the suit has not been propeitlya"aluedgpie Court fee paid is not sufficient, the Court to determine the ipaylalble. I am afraid that the Cgourtleannotllisltipthe issue of court fee and proceed to record the eiIideti1.ee'*o_n'<the merits of the case.
.21. heidAbyl"this Court in the Case of Laxmi Compalriymland Another (supra), the issue court fee has to be treated as a pre_1iIn_i;I'1a,i9j;A issue. This Court. in the ease of xI{arrta.t:aka Theosophical Federation (supra) has that subsections 2 to 6 of Section ll perse " -rinaridates that all the questions relating to proper valuation of the subjecbmatter of the suit and payment fight 25 of proper courtwfee arising on the basis of the pleas and written statement shall be heard and decided before the evidence is recorded on the merits of the claim.
22. In the case of A.M'adhava Hegde"fsr.r";_:-f'a), the Trial Courts order refusing to treat:
relating to court fee as preliminary 'issue on the ground that it is not pure question of law and facts, this Court it order. This Court directed.=t'hlatVt.:f'hle"r-court fee "issue has to be tried as a preliminary it ' 'i it to refer to the Division Bench blinriilthe ease of VEERAGOUDA 81 @ SHANTAPPAGOWDA, 2009 KAR 887, wherein it is held that theélllissuelregarding valuation of suit, and payment of "..,court",vf_Aee shall be tried as preliminary issue. if "--'_Anece'ssary, after recording of evidence; it has to decide the said preliminary issue before the evidence is recorded on the merits of the claim. 9%.
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24. The plain reading of the provisions contained in Section. 11(2) and the interpretation which received at the hands of this Court in the to hereinabove make it crystallyelesrp that has V 9 no option but to try the court Zisslue as' preliniii~1.ary_VV issue. This is only with 'o:n'e.p>rid.e1'V.. of V insufficiency of the court fee"'iia_s: raisedhefore the first hearing of the 'case, it is not in dispute that such a plea in paragr3{ph_'«..Vfill"1"'lief statement itself. The filingZ'of"VI'.}ii.,:ilf$ilo.\.;iifor additional issues and i.A.i\io::(3. «additional issue Nos.2 and 3 as preliminary issues not justify the defirrnent of the ' V' coi1s:iderat'ion of the"Court on court fee issue.
V and S.V. Act. is a fiscal statute and itsv.pr"o;«ilsions are to be construed strictly. Even V'~».assuming that the determination of the court fee is a mixed question of fact and law, then also.
"settle Trial Court has to call for the evidence on the issue it pertaining to the payment of court fee. fig}! 27
26. For all the aforesaid reasons, I Cai'1xIi¥O:lt'*.'.t)Ut set aside the Trial Courts order and H Court to take up additional issue No.2.u issue. If the Trial Court forms the it is a mixed question of fact.__ar1d it li'a's}to.,_h0ld anti"
enquiry thereon.
27. Now the that arises is what has which is already record of the T rial Courtyllloijlestion would not have arisenl,ll--i1°Vll learned counsel for the petitioner l"Were...toi"'.coine to this Court before the ' V' r-v.,corr1.rr1e.1'1ee"m'ent oflthle trial. The harmonious reading of i._.al1iA_atlhe of Section 11 of the K.C.F. and S.V. Act-..4clea1'lyvi'jreireais that the Tria} Courts determination 'eou1't fee is tentative. What it determines is _ lalwaiyis subject to review. further review and correction stated in the last portion of Section 11(1) of the V K.C.F. and SV. Act. Section 11(1) deals with the determination of the court fe o. the presentation of the 28 plairit. that is, before the filing of the written statement. Section 11(2) calls for the determination for the court fee payable after the filling of the written state4nient,. Section 11(3) provides for the re--detern1inaf_t'i'on;_'V-'give. _ appellate court) of the court fee payable-,"i'f»~ are impleaded subsequently.:i__ Section 1 1 provides for thellre.jdete1-inination of.t.he..court.t * fee payable while considerin'g.:_ih_e order passed by ' being the statutory,"sch:en'iei._*.t_hev1evidence, which is pla(:eCl t_he'lTrial Court cannot be ordered to be ~ « l evidence placed on the record of the » Trial .VCour.t"*remains intact. On taking up additional 'issue the preliminary issue and delivering its declispiori thereon. the Trial Court shall resume the trial V' the stage ai. which it was interrupted, The same shall of course also depend on the outcome of the Trial Courts finding on additional issue No.2. $324;
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29. If the Trial Court holds that the court fee paid by the first respondent is adequate. it shaiipprejstarrae the proceedings of recording of evidence on _ the case straightaway. If the rial C'ourt.::j'_de'ii.iIers it it finding that the Court fee paid is not. call upon the first respondentto pay the devifilciitveopurt feet' within the prescribedtime i 'faiiing wh_ichi§the Trial Court has to reject the } it
30. 'l'hes'e__ petfltiorisl Vaccordirtgly. No order as " l' ' This'fC:oLirt'»ts'"appreciative of the assistance renderedlnéot .0nl_~,.( by learned counsel for the parties, A' bL};1fitheA'other iear_ne.d members of the bar, particularly. ' the learned Additionai Advocate Ger'1era1,'iifjhc% took the time and trouble to assist me in this matter.
sa/-
'JUDGE VGR/BVR