Karnataka High Court
Smt.Sai Lakshmi Kothandaraman vs Kosalia Kumar Tangavelu on 7 January, 2022
Author: Pradeep Singh Yerur
Bench: Pradeep Singh Yerur
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE PRADEEP SINGH YERUR
CIVIL REVISION PETITION No.338/2021
BETWEEN
SMT. SAI LAKSHMI KOTHANDARAMAN
(ALSO KNOWN AS SAI LAKSHMI
KOTHANDARAMAN)
W/O LATE KOTHONDARAMAN
NO.150, M.M.ROAD
BANGALORE-560005.
... PETITIONER
[BY SRI. J.D.ELANGOVEN, ADVOCATE]
AND
1. KOSALIA KUMAR TANGAVELU
KNOWN AS (KOUSALA KUMAR SHANKAR)
S/O LATE M.SHANKAR
AGED 59 YEARS
R/AT OLD NO.40, NEW NO.150
MM ROAD, FRAZER TOWN
BANGALORE-5.
2. S.SURENDAR (LATE)
S/O SHANKAR
(a) BHARATHI
(b) DR. SATHYA PRIYA
2
(c) DEEPAK SURENDAR
3. YASHODHAMMA SHANKAR
W/O LATE SHANKAR.
... RESPONDENTS
[BY SMT. NIDHISHREE B.V, ADVOCATE]
THIS CIVIL REVISION PETITION IS FILED UNDER SECTION
115 OF CPC., AGAINST THE ORDER DATED 30.07.2021 PASSED ON
I.A. IN O.S.NO.27115/2010 ON THE FILE OF THE LVII ADDITIONAL
CITY CIVIL JUDGE AND SESSIONS JUDGE, MAYO HALL UNIT,
BENGALURU, DISMISSING THE IA FILED UNDER ORDER 7 RULE
11(b) OF CPC, FOR REJECTION OF PLAINT.
THIS CIVIL REVISION PETITION COMING ON FOR
ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Heard Sri. J.D. Elangoven, learned counsel appearing for petitioner/defendant No.2 and Smt. Nidhishree B.V., learned counsel appearing for respondent No.1/ plaintiff.
2. Brief facts leading to the filing of the present petition, as borne out from the pleadings, are as follows:
Respondent No.1/plaintiff has filed a suit for partition of 'A and B' schedule properties and for declaratory relief with regard to the Will dated 05.04.1980 as being null and void. 3 The petitioner, who is the second defendant has filed an application seeking rejection of plaint under Order VII Rule 11(b) of the Code of Civil Procedure, 1908 (hereinafter referred to as 'CPC' for short) stating that as per Section 35(1) of the Karnataka Court-Fees & Suits Valuation Act, 1958 & Rules, 1960 (hereinafter referred to as 'the said Act' for short), the Court Fee has not been paid. The said application was resisted by respondent No.1/plaintiff and an order came to be passed by the learned District Judge vide order dated 30.07.2021.
3. Respondent No.1/plaintiff in the objections to the said application filed by petitioner/defendant No.2 has stated that, if a Court finds that the suit schedule properties are undervalued, respondent No.1/plaintiff is ready and willing to pay the Deficit Court Fee as directed by the Court.
4. It is the contention of the learned counsel appearing for the petitioner/defendant No.2 that the impugned 4 order passed by the trial Court is capricious and arbitrary and has not considered the provisions of Section 35 of the said Act. It is the further contention of the learned counsel appearing for the petitioner/defendant No.2 that respondent No.1/plaintiff is not residing or in possession of the suit schedule properties and is living in Canada and his passport is filed before the trial Court and the question of respondent No.1/plaintiff being in joint possession does not arise. He further contends that the trial Court has not taken note of the said fact and ignored the execution of the Will dated 05.04.1980, after 40 years knowingfully well of its existence. Accordingly, he contends that the suit schedule properties are undervalued and no Court Fee has been paid for the relief of declaration. Learned counsel further contends that though the passport of respondent No.1/plaintiff has been filed before the Court, the trial Court has not taken the same into consideration and erred in passing the impugned order. On the basis of these submissions, the learned counsel appearing for 5 the petitioner/defendant No.2 seeks to set aside the order passed by the trial Court on the application filed by him under Order VII Rule 11(b) of the CPC.
5. Per contra, Smt. Nidhishree B.V., learned counsel appearing on behalf of respondent No.1/plaintiff submits that the suit is filed mainly for partition and to declare the Will dated 05.04.1980, which has not been acted upon as null and void. She further contends that it is very clearly stated in Para-3 of the plaint that, no partition has taken place between the parties, as they continue to be in joint possession and the parties are in joint family status and that respondent No.1/plaintiff is having equal share in both 'A and B' schedule properties.
6. It is further submitted by the learned counsel appearing for respondent No.1/plaintiff that they have also stated in the very same Para-3 of the plaint that, respondent No.1/plaintiff has come to know about in respect of 'A and B' 6 suit schedule properties that respondent Nos.1 and 2 has created a Will by virtue of the same and they have entered into a partition deed among themselves, which is being sought to be declared as null and void and not having been acted upon.
7. Learned counsel appearing for respondent No.1/plaintiff further contends that the plaint cannot be rejected on the ground of non-payment of Court Fee and she further contends that in the objections to the application filed under Order VII Rule 11(b) of the CPC, they have very clearly stated that, if the Court comes to the conclusion that there is a Deficit Court Fee, they are ready and willing to pay the Court Fee.
8. It is her further contention that the contention of the learned counsel appearing for the petitioner/defendant No.2 with regard to the Court Fee to be paid under Section 35(1) of the said Act would not arise in the present situation, 7 as she contends that under the facts and circumstances of the present case, the relevant provision of payment of Court Fee would be under Section 35(2) of the said Act. For better understanding, Section 35(1) and 35(2) of the Karnataka Court-Fees & Suits Valuation Act, 1958 & Rules, 1960 are extracted below:
"35. Partition suits.-(1) In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff whose title to such property is denied, or who has been excluded from possession of such property, fee shall be computed on the market-value of the plaintiff's share.
35(2). In a suit for partition and separate possession of joint family property or property owned, jointly or in common, by a plaintiff who is in joint possession of such property, fee shall be paid at the following rates:-8
Rupees fifteen if the value of plaintiff's share is Rs.3,000 or less;
Rupees thirty if the value is above Rs.3,000 but not more than Rs.5,000;
Rupees one hundred if the value is above Rs.5,000 but below Rs.10,000; and Rupees two hundred if the value is Rs.10,000 and above."
Section 35(2) of the said Act very clearly states that wherein the suit for partition and separate possession of joint family property owned, which is jointly owned or in common by plaintiff, who is in joint possession, who shall be paid in the following manner, which is extracted hereinabove.
9. Based on Section 35(2) of the said Act, respondent No.1/plaintiff has valuated the suit schedule properties and has paid the relevant Court Fee of Rs.200 in accordance with Section 35(2) of the said Act. This aspect of the matter is dealt with the trial Court by appreciating the contentions of both the parties in its impugned order.
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10. Having perused the impugned order, I do not find any legal infirmity or arbitrariness or illegality in the order passed by the trial Court based on the averments made by the plaintiff in the plaint.
11. If it is the contention of the learned counsel appearing for the petitioner/defendant No.2 that respondent No.1/plaintiff is not in joint possession and he is not a joint family member of the family and owner of the suit schedule properties or that he has been excluded from the possession of the suit scheduled properties. The petitioner/defendant No.2 ought to have produced the necessary material before the Court below and explain the same and pursue the matter before the trial Court. On perusal of the records and impugned order of the trial Court, I do not find any such material having been produced by the petitioner/defendant No.2 before the trial Court, as nothing is forthcoming in the impugned order and neither the petitioner has produced any material before 10 this Court nor has produced any documents regarding ousting of possession of the plaintiff from the suit schedule properties. Hence, taking the contentions of the learned counsel appearing for the petitioner/defendant No.2 as well as learned counsel appearing for respondent No.1/plaintiff, I do not find any illegality or perversity in the order passed by the trial Court in rejecting the application filed under Order VII Rule 11(b) of the CPC.
12. While considering the issue of payment of Court fee being sufficient or insufficient, the duty is cast upon the trial Court to go through the averments made in the plaint and on the basis of the averments made in the plaint only, the decision will have to be taken and not on the basis of any pleadings that are made in the written statement or any application or documents produced by the defendants challenging the sufficiency of Court fee. In the present case on hand, it is the case of plaintiff that the plaintiff and defendants are family members and partition has not taken 11 place between the parties and that the plaintiff continued to be in joint possession of the suit schedule properties and hence, he has sought for partition of his share. These averments are categorically made in para-3 of the plaint. Once the plaintiff makes such an averment in the plaint that the properties are the joint family properties and that they are in joint possession of the suit schedule properties, that itself is sufficient for the plaintiff to value the suit schedule properties in accordance with Section 35(2) of the said Act. The question of Court considering the averments and the defence of defendant No.2/petitioner herein for the purpose of sufficiency or insufficiency of the Court fee would arise after the detailed investigation/evidence/ trial. If the Court thereafter, on an enquiry, comes to the conclusion that the plaintiff has undervalued and paid Deficit Court fee, the Court may order the plaintiff to pay the necessary Deficit Court fee. In the present case on hand, the plaintiff has categorically stated in the objections to the application filed by defendant 12 No.2/petitioner herein that he is ready to pay the Deficit Court fee, if any, as directed by the trial Court.
13. Therefore, under the above said circumstances and legal position, the plaintiff has rightly valued the suit in accordance with Section 35(2) of the said Act and the trial Court has rightly appreciated the same and there is no perversity and illegality in the impugned order passed by the trial Court.
14. It is further submitted that by learned counsel appearing for the petitioner/defendant No.2 that he has not been given opportunity to cross-examine the plaintiff before the Court below.
15. Learned counsel appearing for respondent No.1/ plaintiff submits that the evidence of the plaintiff has been completed and since defendant No.2, petitioner herein has not been cross-examined, he has filed an application for recall and 13 re-opening of the case and permission to cross-examine the plaintiff-PW1 before the trial Court.
16. At this stage, learned counsel appearing for respondent No.1/plaintiff submits that the evidence of defendant No.2 since having not been adduced, the same is also closed and defendant No.2 has filed application for recall and reopening of the case and to provide an opportunity to him to cross-examine the plaintiff's witness. Since the said application is filed and pending before the trial Court, it would not be appropriate for this Court to infringe to the rights of the trial Court Judge in passing any further orders on the said application or interfering with such orders proposed to be passed by the trial Court and it is premature for this Court to pass any such orders. Learned counsel appearing for the parties may agitate before the trial Court in pursuing the application already pending before the Court for recall and reopen and for permission to lead further evidence and no 14 observation or finding or opinion is expressed on the said application, which is pending before the trial Court.
17. On the basis of the above discussions and submissions, I am of the opinion that the impugned order passed by the trial Court does not require any interference. Accordingly, I pass the following:
ORDER i. Civil Revision Petition is dismissed. ii. The orders passed by the trial Court on I.A. filed under Order VII Rule 11(b) of the CPC is affirmed. No order as to costs.
Sd/-
JUDGE SJK