Karnataka High Court
Mr Asgar vs Mr Anwar Sab on 22 November, 2022
Author: V.Srishananda
Bench: V.Srishananda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE V.SRISHANANDA
REGULAR FIRST APPEAL NO. 1722 OF 2014 (PAR)
BETWEEN:
1. MR. ASGAR
S/O ANWAR SAB,
AGED ABOUT 39 YEARS.
2. MR. ASLAM
S/O ANWAR SAB,
AGED ABOUT 38 YEARS,
BOTH ARE RESIDENTS OF
C/O SYED NOORUDDIN,
NO.5, S.N.BUILDING, OLD BYAPPANAHALLI,
MARUTHI SEVANAGAR POST,
BANGALORE-33.
...APPELLANTS
(BY SRI. THONTADHARYA R.K., ADVOCATE
V/O DATED 07.09.2022, APPELLANTS AND
R2 TO R5 ARE TREATED AS LR'S OF DECEASED R1)
AND
1. MR. ANWAR SAB
S/O LATE SINNU SAB,
AGED ABOUT 60 YEARS.
2. MRS. BUSHEERA
W/O ANWAR SAB,
AGED ABOUT 53 YEARS.
3. KUM. MUNEERA BANU
D/O ANWAR SAB,
AGED ABOUT 38 YEARS.
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4. MR. AKRAM
S/O ANWAR SAB,
AGED ABOUT 33 YEARS.
5. KUM. HUMERA
D/O ANWAR SAB,
AGED ABOUT 31 YEARS,
THE RESPONDENTS NO.1 TO 5 ARE
RESIDENTS OF NO.118,
HOODI VILLAGE, MAHADEVAPURA POST,
BANGALORE-560 048.
6. MR.FARAHATH
S/O LATE SINNU SAB,
AGED ABOUT 56 YEARS.
7. MRS. JARINA TAJ
W/O FARAHATH,
AGED ABOUT 46 YEARS.
8. MRS.RIZWANA
D/O FARAHATH,
AGED ABOUT 34 YEARS.
9. MR.NAVEED
S/O FARAHATH,
AGED ABOUT 30 YEARS.
10. MR.IMRAN
S/O FARAHATH,
AGED ABOUT 30 YEARS,
THE RESPONDENT NO.6 TO 10 ARE
RESIDENTS OF NO.L-3770, BHARATHIYA
ROAD, RAMASWAMY PALYA, M.H.NAGAR
POST, BANGALORE-560 030.
11. MR.SATTAR SAB
S/O LATE SINNU SAB,
AGED ABOUT 54 YEARS.
12. MRS.SHATEEZ
W/O SATTAR SAB,
AGED ABOUT 46 YEARS.
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13. MR.TABREEZ
S/O SATTAR SAB,
AGED ABOUT 30 YEARS.
14. MR.SHADIH
S/O SATTAR SAB,
AGED ABOUT 28 YEARS.
15. KUM.SUMMA
D/O SATTAR SAB,
AGED ABOUT 26 YEARS.
16. MR.BAKASH
S/O LATE SINNU SAB,
AGED ABOUT 48 YEARS,
RESIDING AT NO.L-3770,
BHARATHIYA ROAD,
RAMASWAMY PALYA,
M.H.NAGAR POST,
BANGALORE-560 030.
17. SRI.K.SUBBA RAJU
S/O LATE KRISHNAM RAJU,
AGED ABOUT 48 YEARS,
RESIDING AT NO.922,
RAJAPALAYA, NEAR SHABRI
BRICK WORKS, HOODI VILLAGE,
MAHADEVAPURA POST,
BANGALORE-560 048.
18. M/S. SJR ETERNITY
REPRESENTED BY ITS PROPRIETORS
SRI.RAMESH REDDY AND
SRI.JAYARAMA REDDY,
NO.49, 27TH MAIN, STAGE,
BTM LAYOUT,
BANGALORE-560 064.
...RESPONDENTS
(BY SRI. AMEYA FADNIS, ADVOCATE FOR R2 TO R5;
R6, R7, R8, R9, R10, R11, R12, R13, R14, R15, R16
AND R18 ARE SERVED BUT UNREPRESENTED;
SRI. VIGNESHWARA U., ADVOCATE FOR R17;
V/O DATED 14.10.2022, R18 CALLED OUT ABSENT)
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THIS RFA FILED UNDER ORDER SECTION 96 OF CODE OF
CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE
DATED 31.7.2014 PASSED IN O.S.6627/2008 ON THE FILE OF
XXXVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BANGALORE, REJECTING THE PLAINT U/ORDER 7 RULE 11(b)
AND (c) OF THE PLAINT FOR NON COMPLIANCE WITH ORDER
DT 19.3.2014.
THIS REGULAR FIRST APPEAL COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
The case is posted for admission.
2. The plaintiffs are the appellants before this Court. The plaintiffs have filed the suit for partition. The issue was raised as to the sufficiency of the Court fee on the plaint vide issue No.7 before the trial Court after the pleadings were completed. The trial Court answered issue No.7 in the negative and held that the plaintiffs were directed to pay the Court fee as per Section 35(1) of the Karnataka Court fee and Suit Valuation Act instead of 35(2) of the said Act. However, on perusal of the material on record, the plaintiffs have failed to pay the court fee, the suit came to be dismissed.
3. Before this Court, the learned counsel for the appellants has filed a memo dated 9.11.2022 which reads as under:
"The Appellants have preferred the present Appeal impugning the Order and Decree of 5 Rejection of Plaint passed in O.S No.6627 / 2008 dated 31.07.2014 on the file of the City Civil Judge Court CCH 39 , Bangalore . The Appellants who are the Plaintiffs in O.S No.6627 / 2008 instituted the suit for Partition and Separate Possession of their respective 1/3rd share of the suit Schedule Property ; the Hon'ble Trial Court rejected the Plaint on the ground that Plaintiffs / Appellants have not paid insufficient Court Fees. The Appellants are ready and willing to pay the deficit Court Fees as per the Karnataka Court Fee and Suit Valuation Act .
The Appellant as per Section 35 (1) of KCF & SV Act is ready and willing to pay the Court Fee valuating their share of the property to an extent of 1 Acre 9 Guntas at the rate of Rs.12,00,000/ - (Rupees Twelve Lakhs ) per Acre, The Appellant is claiming 1/3rd share of the suit Schedule Property which measures 3 Acre 27 Guntas in Sy.No.94 of Hoodi Village , K.R Puram Hobli , Bangalore East Taluk , Bangalore .
The Respondent has contended that the value of the Schedule Property as on the day of the Suit is Rs.12,00,000/- per Acre , The Appellants entitlement is 1 Acre 9 Guntas of the Suit Schedule Property. As per the contention of the Respondent the value of the Suit Schedule Property is more than Rs.12,00,000 per Acre, the Appellant herein values the Suit Schedule Property at Rs.12,00,000 per Acre, the share of the value of the property is 6 valued at Rs.13,80,000 ( Rupees Thirteen Lakhs Eighty Thousand ) as such as per Article 32 (1) of the KCF & SV Act , the Court Fee payable by the Appellant will be Rs.86,125/ - (Rupees Eighty Six Thousand One Hundred and Twenty Five Only ) out of which the Appellants have paid Court Fee of Rs.3.000/-(Rupees Three Thousand) as such the Appellants are willing to pay the deficit Court Fee of Rs.83,125/-(Rupees Eighty Three Thousand One Hundred and Twenty Five ) under Section 35(1) Article 1 ( vii ) of KCF & SV Act . Without any prejudice to any contentions of the Appellants, the same may be taken on record in the interest of justice and equity."
4. It is settled principles of law that the payment of Court fee is between the plaintiffs and the Court. However, the reasons assigned for non-payment of the Court fee earlier though insufficient, taking note of the fact and the rights of the immovable properties are to be adjudicated in the suit on merits, the memo is allowed.
5. Accordingly, I pass the following order:
ORDER i. The appeal stands disposed of.
ii. Dismissal of the suit for non-payment of Court fee is hereby set aside and the matter 7 is remitted to the trial Court for fresh disposal in accordance with law.
iii. The parties shall appear before the trial Court without further notice on 05.12.2022.
iv. It is further made clear that on 05.12.2022 the plaintiffs shall pay the deficit Court fee and same is condition precedent for proceeding the suit in accordance with law.
v. All other contentions of the parties are kept open during the trial of the suit.
Sd/-
JUDGE SKS