Karnataka High Court
Smt. V. Vijayalakshmi vs Smt. Puttamma on 27 November, 2018
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
R
DATED THIS THE 27TH DAY OF NOVEMBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE SREENIVAS HARISH KUMAR
REGULAR FIRST APPEAL NO.778 OF 2018
BETWEEN:
SMT. V. VIJAYALAKSHMI
W/O SRI. M. BALAKRISHNA REDDY
AGED ABOUT 61 YEARS
R/A SAKKANAHALLI FARM HOUSE
MAGUNDI POST, BANGARPET TALUK
KOLAR DISTRICT PIN-563 114.
. . . APPELLANT
(BY SRI. G. PAPI REDDY, ADV.)
AND:
1. SMT. PUTTAMMA
W/O LATE. SRI. VENKATASWAMY
AGED ABOUT 75 YEARS
2. SRI. V. GOPALAKRISHNA
S/O LATE. SRI. VENKATASWAMY
AGED ABOUT 47 YEARS
BOTH ARE RESIDING AT NO.577
" LAKSHMINARAYANA NILAYA"
1ST CROSS, THIMMA REDDY COLONY
JEEVANBHIMA NAGAR
BENGALURU-560 075.
. . . RESPONDENTS
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(BY SRI. ASHOK HARANAHALLI, SR. ADV.
FOR SRI. B.S. CHENNAKESHAVA, ADV.
FOR R1 AND R2)
THIS RFA IS FILED UNDER SEC.96 R/W ORDER
XLI RULE 1 OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED: 30.01.2018 PASSED IN
OS.NO.2228/2014 ON THE FILE OF THE III ADDL.
CITY CIVIL AND SESSIONS JUDGE, BANGALORE,
ANSWERING ISSUE NO.1 IN THE AFFIRMATIVE AND
HOLDING THAT COURT FEE PAID BY THE PLAINTIFF
IS GROSSLY INADEQUATE AND SHE HAS TO PAY
BALANCE COURT FEE OF RS.3,37,580/- ON OR
BEFORE 15.02.2018, FAILING WHICH PLAINT SHALL
STAND REJECTED.
THIS APPEAL COMING ON FOR ORDERS THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
With the consent of learned counsel appearing for the appellant and learned counsel appearing for the respondents, this appeal is taken up for final disposal.
2. The appellant is the plaintiff in O.S.No.2228/2014 on the file of the Additional City Civil and Sessions Judge, Bangalore. In the said suit, plaintiff has claimed the following reliefs: 3
a) Granting mandatory injunction directing the 1st defendant to demarcate the plaintiff's share for an extent of 13 1/3 guntas with specific boundaries in the suit schedule property as per the partition deed dated 7.2.1981 and put her in separate possession of her 13 1/3 share.
b) If this Hon'ble Court comes to the conclusion that the plaintiff and defendant Nos.1 and 2 were in joint possession of the suits schedule property as per the partition deed dated 7.2.1981 and there was no partition among the plaintiff and defendant No.1 and 2, direct the defendant Nos.1 and 2 to effect the partition and put the plaintiff in separate possession of her 1/3 share in the suit schedule property.
3. It appears that an objection was taken with regard to the Court fee paid by the plaintiff. The defendants contended that the plaintiff should pay the court fee on the market value of the property as she was not in the joint possession of the suit schedule property. 4 The Court below framed a preliminary issue with regard to the Court fee which is as below:
"Whether the defendants prove that the Court fee paid on the suit is insufficient ?".
4. On this preliminary issue, the trial court held an enquiry and came to conclusion that the plaintiff was not in joint possession of the property with the defendants and that the suit land was converted for non-agricultural purpose and therefore, the trial court directed the plaintiff to pay Court fee on the market value of the property amounting to Rs.3,37,580/-. Plaintiff was given time till 15.2.2018 for paying the Court fee. Since the court fee was not paid within the said date, the plaint stood rejected. It is this order, which is challenged in the present appeal.
5. The learned counsel appearing for the appellant-plaintiff submits that if the plaint is read as a whole, it can be very clearly made out that the plaintiff 5 has not been excluded from the joint possession. The plaintiff has clearly stated that she was in joint possession of the suit schedule property along with the defendants. Although, she claimed mandatory injunction directing defendant No.1 to demarcate the share for an extent of 13 1/3 guntas with specific boundaries in the suit schedule property as per the partition deed dated 17.2.1981, the suit that she filed was for partition only. The plaintiff need not pay court fee on the actual market value of the property. Whenever joint possession is pleaded, court fee has to be paid as per Section 35(2) of the Karnataka Court Fee and Suits Valuation Act. On the point that only plaint averment must be considered for deciding the court fee aspect, he has relied on the judgment of the Supreme Court in the case of Neelavathi and others v. Natarajan and others (AIR 1980 SC 691).
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6. The learned senior counsel appearing for the respondents contends that though the plaintiff has stated in the plaint that she was in joint possession with the defendants, the nature of the relief that she has claimed very clearly shows that she was excluded from the joint possession. Very specifically he refers to prayer no.2 to argue that the plaintiff was not in joint possession of the suit schedule property as on the date of the suit. In the enquiry held by the court, the plaintiff very clearly admitted that she was not in joint possession. Therefore, the trial court is justified in rejecting the plaint when the plaintiff did not pay the court fee within the given time.
7. I have considered the points of arguments. Indeed it is settled principle that only the plaint averments should be considered to decide the correctness of valuation of the reliefs and the court fee paid by the plaintiff. In my opinion, a subtle distinction 7 can be made. The defendant can seek for rejection of plaint under Order VII Rule 11(b) or (c) of Civil Procedure Code whenever relief claimed is undervalued or court fee paid is insufficient. He may also contend in the written statement that suit is not properly valued and that the court fee paid is insufficient. Whenever rejection of plaint is sought under Order VII Rule 11(b) or (c) only plaint averment shall be considered, but the position is not so when the court raises preliminary issue. In this context reference may be made to Section 11(2) of Karnataka Court Fee and Suits Valuation Act which enables the defendant to plead that subject matter of the suit has not been properly valued or that the fee paid is not sufficient. This section also provides for deciding all questions arising on such pleas before evidence is recorded affecting the such defendant on the merits of the claim.
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8. Further I find it useful to refer to a judgment of the Supreme Court in Kuldeep Singh Pathania vs Bikram Singh Jaryal (Civil Appeal 4080/2014). The principle laid down in this decision is as follows : -
"Thus, for an enquiry under Order VII Rule 11(a), only the pleadings of the plaintiff/petitioner can be looked into even if it is at the stage of trial of preliminary issues under Order XIV Rule 2(2). But the entire pleadings on both sides can be looked into under Order XIV Rule 2(2) to see whether the court has jurisdiction and whether there is a bar for entertaining the suit".
9. Order XIV Rule 2 (2) of CPC provides that the court may try a preliminary issue if it relates to jurisdiction of the court or bar to the suit created by any for the time being in force. Although Order XIV Rule 2 (2) CPC does not provide for trying a preliminary issue relating to court fee, section 11 (2) of Karnataka Court Fee and Suits Valuation Act contemplates such an issue 9 to be raised, and therefore following the decision in Kuldeep Singh Pathania (supra), an analogy can be drawn that whenever preliminary issue relating to court fee is framed in accordance with section 11 (2) of Karnataka Court Fee and Suits Valuation Act, the court can hold an enquiry and pleadings of the plaintiff and the defendant can be considered. An issue relating to court fee need not be always tried as a preliminary issue; it can be tried along with other issues. While deciding the other issues along with issue on court fee, if the court can consider the entire pleadings and the evidence adduced by the parties on either side, the argument that only plaint averments must be considered for a decision on preliminary issue relating to court fee does not stand to reason. The judgment of Hon'ble Supreme Court in Neelavathi (supra) cited by the appellant is of no avail to appellant because the facts in that case disclose preliminary issue regarding court fee had not been framed.
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10. In the case on hand, the defendant has pleaded about plaintiff's ouster from the suit property by referring to relinquishment made by plaintiff. Based on answers given by plaintiff (PW1) in the cross examination, the trial court has come to conclusion that the plaintiff was ousted from suit property. Therefore the trial court has come to conclusion that Section 35(1) of Karnataka Court Fee and Suits Valuation Act is applicable and the plaintiff has to pay court fee on the market value of the property which has been converted into non- agricultural purpose. It is not the argument of appellant's counsel that findings given by the trial court based on enquiry on preliminary issue are incorrect. His argument is that the trial court has committed a mistake in considering the written statement. This argument cannot be upheld in the context discussed above.
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11. Lastly, even if plaint averments including the nature of reliefs that the plaintiff has claimed are considered and given a meaningful reading to plaint it can very well be said that plaintiff's joint possession of the suit property with defendant cannot be inferred, although the plaintiff claims to be in joint possession of the suit property with the plaintiff. What is required is meaningful reading and not formal reading. For these reasons, I do not find any infirmity in the impugned order. Appeal is dismissed.
12. Now the learned counsel for the appellant/plaintiff submits that the plaintiff is ready to pay the court fee provided four weeks time is granted. Considering this submission, four weeks time is granted for payment of court fee to meet the ends of justice. If court fee is paid on the plaint in the trial court, the suit shall stand restored.
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13. In view of the disposal of the appeal, I.A.2/2018 does not survive for consideration and accordingly, it is dismissed.
Sd/-
JUDGE DM