Karnataka High Court
Smt.Jalajakshi vs Sri.P.Narayana Rao on 11 March, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
WRIT PETITION NO.381 OF 2022 (GM-CPC)
BETWEEN
1. SMT. JALAJAKSHI
W/O LATE B K GANGADHARA
AGED ABOUT 64 YEARS
2. SMT. MALATHI
D/O LATE B K GANGADHARA
AGED ABOUT 60 YEARS
3. SRI JAGATHPAL
S/O LATE B K GANGADHARA
AGED ABOUT 52 YEARS
4. MS. KAMINI
D/O LATE B K GANGADHARA
AGED ABOUT 53 YEARS
5. MS. PRABHAVATHI
D/O LATE B K GANGADHARA
AGED ABOUT 57 YEARS
6. SRI B K KISHORE
S/O LATE B K GANGADHARA
AGED ABOUT 55 YEARS
7. SMT. PRIYADARSHINI
D/O LATE B K GANGADHARA
AGED ABOUT 46 YEARS
2
ALL PETITIONERS ARE RESIDING AT
AT BANGERA COMPOUND
BOLOOR VILLAGE, ASHOKNAGAR
KODICAL
MANGALURU-575 006.
...PETITIONERS
(BY SRI ANANDARAMA K, ADVOCATE)
AND
1. SRI P NARAYANA RAO
S/O LATE P GOVINDA RAO
AGED ABOUT 92 YEARS
R/AT BANGARU HOUSE, TENKA YERMAL
UDUPI TALUK
REPRESENTED BY GPA HOLDER
SRI Y N RAMACHANDRA RAO
S/O P NARAYANA RAO
AGED ABOUT 60 YEARS
BANGARU RESIDENCY
OPPOSITE PRASANNA GANAPATY TEMPLE
HUDCO COLONY MANIAPAL
UDUPI-576 104.
SINCE DECEASED REPRESENTED BY
1A. SRI Y N RAMACHANDRA RAO
S/O P NARAYANA RAO
AGED ABOUT 60 YEARS
BANGALRU RESIDENCY
OPPOSITE PRASANNA GANAPATY TEMPLE
HUDCO COLONY MANIAPAL
UDUPI-576 104.
2. SRI B K RAMANATH
S/O LATE LINGU POOJARY
AGED ABOUT 74 YEARS
RESIDING AT NATIL HOUSE
3
BANGRA KULUR VILLAGE
KULUR POST
MANGALURU-575 103
SINCE DECEASED REPRESENTED BY
2A. SMT. JALAJAKSHI
W/O LATE B K RAMANATH
AGED 62 YEARS
R/AT DOOR NO.3-49/3
SHIVAKRIPA HOUSE
GANDHI NAGAR, KAVOOR
MANGALRU-575 105.
2B. SMT. THEJAKSHI
W/O MANOHAR
D/O LATE B K RAMANATH
AGED ABOUT 37 YEARS
R/AT DOOR NO.3-49/3
SHIVAKRIPA HOUSE
GANDHI NAGAR, KAVOOR
MANGALRU-575 105.
3. SRI B K PADMANABHA
S/O LATE LINGU POOJARY
AGED ABOUT 70 YEARS
R/AT GUTHIGE HOUSE
BANGRA KULUR
KULUR POST
MANGALURU-575 013.
4. SRI NAGESH
S/O LATE B K GANGADHARA
ADULT
R/AT BANGERA COMPOUND
BOLOOR VILLAGE, ASHOKNAGAR
KODICAL
MANGALURU-575 006.
....RESPONDENTS
4
(BY SRI M SUDHAKAR PAI, ADVOCATE FOR R1;
SRI Y RAJENDRA PRASAD SHETTY, ADVOCATE FOR R3;
NOTICE TO R2(A) & (B) AND R3 SERVED UNREPRESENTED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
RECORDS IN OS.NO.936 OF 2018 PENDING ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE AND JMFC, MANGALURU, DAKSHINA
KANNADA AND ETC.,
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
This writ petition is filed by the defendants 3 and 5 to 10 in OS No.936 of 2018 on the file of the Court of the Principal Civil Judge, Mangaluru, D.K, challenging the order dated 06th December, 2021, affirming the preliminary issue in favour of the plaintiff.
2. The plaintiff/respondent No.1 herein has filed OS No.936 of 2018, seeking the relief of declaration and permanent injunction. The said suit was contested by the defendants by filing written statement. The trial Court, based on the pleadings on record, formulated the issues for its consideration as per Annexure-E. Issue No.4 reads as under:
5
"4. Whether the valuation made by the plaintiff for the purpose of court fee and jurisdiction is correct?"
3. The aforementioned issue was heard as preliminary issue by the trial Court and by impugned order dated 06th December, 2021, the said issue was answered in the affirmative. Being aggrieved by the same, contesting defendants have preferred this writ petition.
4. Sri Anandarama K, learned counsel appearing for the petitioner drew the attention of the court to the prayer in the plaint. He also submitted that the defendants have pleaded in the written statement that the plaintiff is not in possession of the property and therefore, the plaintiff be directed to pay the court fee on the market value of the property. He further contended that the relief of declaration sought for in the suit itself is misnomer and accordingly, sought for interference in this petition. Nextly, Sri Anandarama contended that Issue No.4 has to be read in two parts; one relating to payment of court fee and another relating to jurisdiction of the Court. Referring to these aspects, he submitted that Section 24(b) of the Karnataka Court 6 Fees and Suits Valuation Act, 1957 (for short hereinafter referred to as the 'Act')is applicable to the case on hand and therefore, the finding recorded by the trial Court that the valuation of the suit to be made under Section 24(d) of the Act is incorrect. In this aspect, Sri Anandarama referred to the judgment of the Hon'ble Supreme Court in the case of VIJAYALAKSHMI v. UGAMA BAI AND ANOTHER reported in AIR 2015 KAR 139; and in the case of J.M. NARAYANA AND OTHERS v. CORPORATION OF THE CITY OF BANGALORE BY ITS COMMISSIONER reported in ILR 2005 KAR. 60, and argued that since the land in question situate in the municipal jurisdiction at Mangaluru, the valuation has to be made accordingly. In this regard, he invited the attention of the Court to paragraph 4 of the plaint and accordingly, sought for interference of this Court.
5. Per contra, Sri Sudhakar Pai, learned counsel appearing for respondent No.1, submitted that the prayer sought for by the plaintiff in the suit is with regard to setting aside the compromise decree dated 31st October, 2008 in Regular Appeals No.187, 193 and 3124 of 2004, arising out of judgment and 7 decree in OS No.1562 of 1990 on the file of the III Additional Munsiff, Mangaluru by the permanent Lok Adalat, as null and void. He further submitted that the plaintiffs were unaware about the compromise decree referred to above and the said compromise has been made to defeat the legitimate right of plaintiffs. The plaintiffs came to know about the compromise decree later and thereafter, secured relevant records including mutation extract from the revenue authorities and as such, the plaintiffs preferred a suit against the defendants, challenging the compromise decree as null and void. He also invited the attention of the Court to Section 24 of the Act and to buttress his arguments, he placed reliance on the judgment of the Hon'ble Apex Court in the case of SUHRID SINGH @ SARDOOR SINGH v. RANDHIR SINGH AND OTHERS reported in AIR 2010 SC 2807; in the case of SRI K.L. VENUGOPAL AND ANOTHER v. SMT. VIMALA K VENUGOPAL AND OTHERS reported in 2018(3) KCCR 2280; and in the case of BASALINGAPPA NINGAPPA AND OTHERS v. DEPUTY COMMISSIONER, DHARWAR AND ANOTHER reported in 1981(1) Kar.LJ 334. He also referred to Section 7 of the Act and submitted that since the plaintiffs are not the executants to the 8 deed in question which requires to be nullified in OS No.936 of 2018, the valuation made by the plaintiff under Section 24(d) of the Act is correct and requires to be affirmed in this writ petition.
6. In the light of the submissions made by the learned counsel appearing for the parties, I have carefully examined the prayer made in the suit, which reads as under:
"For declaration, that the compromise Decree dated 31.10.2008 passed in R.A. No.187/2004, R.A. No193/2004 and R.A. No.314/2004, arising of the judgment and decree passed in O.S. No.1562/1990 on the file of 3rd Additional Munsiff of Mangaluru, by the Permanent Lok Adalat, D.K. Mangaluru is null and void and cannot affect the plaintiff's right, title and interest over the plaint 'A' Schedule property.
For permanent prohibitory injunction restraining the defendants or any one claiming through them from transferring the 'A' schedule property y way of sale, mortgage, lease or any other manners to anyone."
7. The suit is filed seeking declaration that the compromise decree between the defendants inter se is void, inter alia, seeking relief of permanent injunction. Issue No.4 is relating to the payment of Court fee and jurisdiction. It is the 9 case of the plaintiff that the compromise decree dated 31st October, 2008 in the Regular Appeals referred to above before the permanent Lok Adalat is null and void, as same would affect the right of plaintiffs. Section 24 of the Act reads as under:
"24. Suits for declaration:
In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under Section 25;
(a) Where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the property or on rupees one thousand whichever is higher;
(b) Where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property or on rupees one thousand whichever is higher;
(c) 2[x x x x x]
(d) in other cases, whether the subject-matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is 10 valued in the plaint or on rupees one thousand whichever is higher."
8. The language employed under Section 24(a) of the Act is applicable when relief of declaration, coupled with possession, is sought. Section 24(b) of the Act provides for payment of court fee when relief of declaration with consequential relief of injunction is sought and in other cases, Section 24(d) is applicable. In the instant case, the prayer of the plaintiff is to seek declaration challenging the award passed by Lok Adalat in terms of the compromise decree. Undisputably, plaintiff is not a signatory to the compromise decree. In that view of the matter, the law declared by the Hon'ble Apex Court in the case of SUHRID SINGH (supra) is applicable to the case on hand. In the said decision, the Hon'ble Apex Court, at paragraph 6 of the judgment, observed as follows:
"6. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed 11 of transfer/conveyance, can be brought out by the following illustration relating to `A' and `B' -- two brothers. `A' executes a sale deed in favour of `C'. Subsequently `A' wants to avoid the sale. `A' has to sue for cancellation of the deed. On the other hand, if `B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by `A' is invalid/void and non-est/ illegal and he is not bound by it. In essence both may be suing to have the deed set aside or declared as non-binding. But the form is different and court fee is also different. If `A', the executant of the deed, seeks cancellation of the deed, he has to pay ad- valorem court fee on the consideration stated in the sale deed. If `B', who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if `B', a non- executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad-valorem court fee as provided under Section 7(iv)(c) of the Act. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the 12 property calculated in the manner provided for by clause
(v) of Section 7.."
9. This Court, in the case of K. L. VENUGOPAL (supra), has held that the plaintiffs need not pay the court fee on the actual market value of the sale consideration, as the plaintiffs were not parties to the alleged sale deed and accordingly, held that Section 24(d) of the Act is applicable for the purpose of payment of court fee. Perusal of the aforementioned judgments, would substantiate the fact that, if the executant of the deed needs to annul or cancel the said deed, such executant shall file a suit for cancellation of the deed as per Section 31 of the Specific Relief Act. But, if the non-executant of a particular document challenges a particular document/deed, then he has to file suit for declaration seeking invalidation of the said document. In the instant case, the plaintiff is not a signatory to the compromise decree and seeks annulment of the same through declaratory relief. That apart, it is the case of the plaintiff that he is in possession of the suit schedule property and the compromise decree is passed without his knowledge and in that view of the matter, the case of the plaintiffs comes under the 13 purview of Section 24(d) of the Act. Insofar as the argument advanced by Sri Anandarama, relating to the jurisdiction, the observation made by this Court in the case of BASALINGAPPA (supra) at paragraph 9 of the judgment, has observed thus:
"9. It has already been pointed out that the relief sought for in the in the suit does not relate to the immoveable property; therefore it does not fall under S.24(b) of the Act. The relief sought for in the suit falls under Section 24(d) of the Act, which is not one of the sections referred to in the opening clause of sub sec.(2) of S.7 of the Act. Consequently the proviso to sub-se.(1) of S.50 of the Act is not attracted. With the result, there need not be two valuations one for the purpose of the Court fee and another for the purpose of jurisdiction. That being so, it follows that the valuation made by the plaintiffs in the suit holds good for the purpose of Court fee as well as jurisdiction."
10. On conjunct reading of Section 24 vis-à-vis Section 7(2) of the Act, I am of the opinion that proviso to Section 50(1) of the Act is attracted, as it is well established principle that there could be only one valuation for the relief sought for in the 14 plaint. In that view of the matter, following the declaration made by the Hon'ble Apex Court referred to above, I am of the view the judgments relied upon by the petitioner are not applicable to the case on hand. Accordingly, I do not find any ground to interfere with the well-reasoned impugned order passed by the trial Court. Writ petition is accordingly dismissed holding that the plaintiff need not pay the court fee on the actual market value of the property in question.
Ordered accordingly.
Sd/-
JUDGE lnn