Karnataka High Court
Shivakumar vs Smt Jayamma on 18 October, 2012
1
IN THE HIGH COURT OF KARNATAKA, BANGALORE
DATED THIS THE 18TH DAY OF OCTOBER 2012
BEFORE
THE HON'BLE MR.JUSTICE H.BILLAPPA
W.P.No. 5442/2012(GM-CPC)
BETWEEN:
1. Shivakumar,
S/o Late Boraiah,
Aged about 36 years,
2. Smt.Susheela,
W/o Venkatachala,
Aged about 43 years,
3. Smt.Sarvamangala,
D/o Boraiah,
Aged about 41 years,
4. Smt.Kamalamma,
W/o Boraiah,
Aged about 39 years,
5. Smt.Bhagyalakshmi,
D/o Boraiah,
Aged about 34 years,
All are residing at No.1584,
2nd Cross, Nagappa Block,
bangalore-560021.
...Petitioners
2
(By Sri. Narendra, Adv. for Sri.M.V.Chandrashekara Reddy,
Adv.)
AND:
1. Smt.Jayamma,
D/o Late T.Lingaiah,
Aged about 69 years,
R/at Shivapura village,
Nelakadaranahalli Dakale,
Yeshwanthpur Hobli,
Bangalore North Taluk.
2. Smt.Lingamma,
D/o Late T.Lingaiah,
Aged about 65 years,
R/at No.147, 15 'A' Cross,
2nd Stage, II Phase,
West of Chord road,
Mahalakshmipuram,
Bangalore-560004.
3. Smt.Thimmamma,
D/o Late T.Lingaiah,
Aged about 59 years,
R/at Hujenahalli Village,
Narasandra post,
Magadi Taluk,
Bangalore Rural District.
4. Smt. Lakshmamma,
D/o Late T Lingaiah,
Aged about 55 years,
R/at Cucun market,
Kalya Gate, Magadi Town,
Magadi,
Bangalore Rural District.
3
5. Smt.Saraswathi,
D/o Late T.Lingaiah,
Aged about 45 years,
R/at No.76,
Lakshminagar, 3rd Cross,
Near S.V.K.Layout,
Kurubarahalli,
Bangalore-560079.
6. Chandrashekara,
S/o Late T.Lingaiah,
Aged about 48 years,
R/at No.76, Lakshmi Nagar,
3rd Cross, NVK Extension,
Kurubarahalli,
Bangalore-560010.
7. Smt.Jayamma,
W/o Late Lakshminarasimhaiah,
Aged about 61 years,
R/at No.4105, 1st Main Road,
2nd Stage, B Block,
Rajajinagar,
Bangalore-560010.
8. Smt.Shivamma,
W/o Late Narasappa,
Aged about 58 years,
R/at No.1584,
2nd Cross, Nagappa Block,
bangalore-560021.
9. Sri.Siddalingaiah,
S/o Late T Lingaiah,
Aged about 61 years,
R/at No.5, 8th Cross,
4
Lakshminarayanapura,
Bangalore-560021.
...Respondents
(By Sri.N.K.Kantharaju, Adv. for C/R5 & R-1 to R-4 & R-6;
Sri.K.R.Sreenivas Patavardhan, Adv. for R-7;
Sri.R.Chandrashekar, Adv. for R-9)
This WP is filed under Articles 226 & 227 of
Constitution of India, praying to quash the order dated
31.01.2012 passed on I.A.No.6 in O.s.No.1711/2008 passed
by the FCT-II BRD vide Annx-A and etc.
This W.P. coming on for Preliminary Hearing in 'B'
Group this day, the Court made the following:-
ORDER
Heard the learned counsel for the petitioners and also learned counsel for the respondents.
2. In this writ petition under Articles 226 & 227 of the Constitution of India, the petitioners have called in question, the order dated 31.01.2012, passed by the Trial Court in O.S.No.1711/2008 on I.A.No.6.
3. By the impugned order, the Trial Court has dismissed I.A No.6.
54. Aggrieved by that, the petitioners have filed this writ petition.
5. The petitioners have filed suit in O.S.No.1711/2008 for declaration and partition. The trial Court has framed as many as 9 issues. One of the issues i.e., issue No.9 relates to the Court fee. By order dated 31.10.2011, the trial Court has ordered to try issue No.9 as preliminary issue. The respondents 1 to 5 have led their evidence on issue No.9. DW.1 has been examined. At that stage, the petitioners have filed an application to recall the order dated 31.10.2011 and to strike-out the evidence recorded on issue No.9. The trial Court has rejected the application. Therefore, this writ petition.
6. The learned counsel for the petitioners contended that the impugned order cannot be sustained in law. He also submitted that issue No.9 is a mixed question of law and facts and therefore, the trial Court should have tried issue No.9 along with other issues and therefore, the impugned 6 order cannot be sustained in law. Further he submitted that the impugned order frustrates the order passed in Misc.88/2009 and therefore, the impugned order cannot be sustained in law.
7. As against this, the learned counsel for the respondents submitted that the impugned order does not call for interference. He also submitted that issue No.9 relates to Court fee and the trial Court by its order dated 31.10.2011 has rightly ordered to try issue No.9 as preliminary issue and the evidence is also led and therefore, the impugned order does not call for interference. He placed reliance on the decision of this Court in VEERAGOUDA AND OTHERS VS.
SHANTAKUMAR @ SHANTAPPAGOWDA reported in ILR 2009 KAR 887 to contend that issue No.9 relates to court fee and it needs to be tried as preliminary issue and therefore, the impugned order does not call for interference.
8. I have carefully considered the submissions made by the learned counsel for the parties.
79. The point that arise for my consideration is:
Whether the impugned order calls for interference?
10. It is relevant to note, the suit is for declaration and partition. The plaintiffs i.e., the petitioners herein contend that the suit schedule properties are joint family properties. The respondents have contended that the suit schedule properties are not joint family properties and plaintiffs 1 to 6 are not members of the joint family. Item Nos.1, 3, 5 and 6 of the suit schedule properties are the self-
acquired properties of the father-in-law of the respondent No.7. Item No.4 is the self-acquired property of the mother of the respondent No.6. It is also contended that the Court fee paid is not sufficient. The trial Court has framed in all 9 issues. Issue No.9 relates to court fee. The trial Court has ordered to try issue No.9 as preliminary issue. This Court in VEERAGOUDA AND OTHERS VS. SHANTAKUMAR @ SHANTAPPAGOWDA reported in ILR 2009 KAR 887 has observed as follows in paras 13, 15 and 24:
813. A perusal of the said provision makes it clear that an obligation is cast on the Court even before ordering the plaint to be registered, to decide on the materials and allegations contained in the plaint, what is the correct fee payable on the plaint.
The said decision however is subject to review, further review, corrections in the manner specified in the succeeding sub-sections. Sub-section(2) of Section 11 provides, a defendant may, by his written statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim, plead that the subject matter of the suit has not been properly valued or that the fee paid is not sufficient. If such a plea is taken, naturally the Court has to frame an issue. Sub- section (2) further provides all questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. In other words, it mandates, if an issue regarding court fee is raised, the said issue shall be decided before recording evidence on other issues. Therefore, the mandate of law is very clear. No discretion is left to the Court for postponing the decision regarding issue of court fee 9 once such a plea is taken in the written statement or before the evidence is recorded.
15. Order XIV Rule 2 of the CPC is the general provision of civil law relating to trial of suits and issues including any issues as preliminary issue. The Karnataka Court Fees and Suits Valuation Act, is a special law. It has received the assent of the President of India. It prevails over the general law. It is well settled when a special mode has been prescribed by a special law to do a particular job or to exercise the power in relation to subject thereunder, then special law has to prevail over the general law and the mode so prescribed by special law would have to be followed in respect of matters covered therein. Section 11 of the Act, specifically deals with decision as to proper fee in Courts. It gives a special direction to the Court to decide the issue relating to valuation and Court fee, before recording of evidence on merits of the case. Therefore, in so far as the issues relating to valuation and Court fee are concerned, Order XIV Rule 2 of the CPC has to yield to Section 11 of the Act. Therefore, all questions arising with reference to valuation and Court fee payable shall be heard 10 and decided before evidence is recorded affecting such defendant, on the merits of the claim. This aspect has been affirmed and re-affirmed in sub- Sections (2), (3) and (5) of Section 11. Therefore, the intention of the legislature is manifest. The words "shall be heard" repeatedly used in the aforesaid provisions, makes it clear that this provision is mandatory. In order to decide the said issue whether any evidence is to be recorded or not is immaterial. It is also immaterial to find out whether the issue regarding valuation and Court fee is a pure question of law or a mixed question of law and fact or a pure question of fact. When once a plea is taken that the suit has not been properly valued or that the fee paid is not sufficient, issue arising on such pleas shall be heard and decided before evidence is recorded on merits of the claim.
24. In the light of the aforesaid discussions, the statutory provisions and the settled legal position, the issue regarding valuation of the suit and payment of Court Fee shall be tried as a preliminary issue, if necessary, after recording of evidence and decide the said preliminary issue, before evidence is recorded affecting such 11 defendant, on the merits of the claim. Accordingly, the law laid down in the case of SMT.SUJATHA NARAYANA AND OTHERS vs SMT.LEELA RAMAKRISHNA AND OTHERS (Supra) do not lay down the correct law and hence it is overruled. The impugned order is in accordance with law and therefore, do not call for interference.
11. It is clear, the issue relating court fee must be tried as preliminary issue. It cannot be postponed. Therefore, the trial court was justified in ordering to try issue No.9 as preliminary issue. The impugned order does not call for interference. There is no merit in this writ petition and therefore, it is liable to be dismissed.
Accordingly, the writ petition is dismissed.
Sd/-
JUDGE Pv