Karnataka High Court
M R Rajath vs Smt. Amarjeet Kaur on 26 September, 2023
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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NC: 2023:KHC:35122
WP No. 25219 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO.25219 OF 2018 (GM-CPC)
BETWEEN:
M R RAJATH
S/O LATE M RAMACHANDRA
AGED ABOUT 44 YEARS
R/A NO.43, 5TH CROSS
RMV EXTENSION
SADASHIVANAGAR
BANGALORE - 560 080
...PETITIONER
(BY SRI. B VACHAN, ADVOCATE)
AND:
1. SMT. AMARJEET KAUR
W/O PARAMJIT SINGH
MAJOR,
Digitally
R/A NO.446, PANCHA TARA TOWER
signed by III FLOOR, 17TH CROSS
NARASIMHA
MURTHY 4TH SECTOR, H S R LAYOUT
VANAMALA
Location: BANGALORE - 560 034
HIGH
COURT OF
KARNATAKA
2. SRI K C NEELAKANTAN
MAJOR
S/O LATE K C IYYA
R/A NO.43, R M V EXTENSION
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NC: 2023:KHC:35122
WP No. 25219 of 2018
BANGALORE - 560 080
3. SRI K C RAVI
MAJOR
S/O LATE K C IYYA
R/A NO.43, R M V EXTENSION,
BANGALORE - 560 080
4. MS RAMA IYYA
MAJOR
D/O LATE K C IYYA
R/A NO.43, R M V EXTENSION
BANGALORE - 560 080
5. MS UMA IYYA
MAJOR
D/O LATE K C IYYA
R/A NO.43, R M V EXTENSION
BANGALORE - 560 080
6. SMT K T RANJINI
W/O M RAMACHANDRA
MAJOR
R/A NO.334, 14TH MAIN,
RAJMAHAL VILAS EXTENSION
BANGALORE - 560 080
7. SRI M R RAHUL
S/O LATE M RAMACHANDRA
MAJOR
R/A NO.334, 14TH MAIN
RAJMAHAL VILAS EXTENSION
BANGALORE - 560 080
8. SRI M R RAKSHITH
S/O LATE M RAMACHANDRA
MAJOR
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NC: 2023:KHC:35122
WP No. 25219 of 2018
R/A NO.334, 14TH MAIN
RAJMAHAL VILAS EXTENSION
BANGALORE - 560 080
...RESPONDENTS
(BY SMT. ANKITHA G. SHELKE, ADVOCATE FOR R1;
NOTICE SERVED ON R2;
NOTICE HELD SUFFICIENT TO R3 TO R5;
NOTICE DISPENSED WITH TO R6 TO R8)
THIS WP IS FILED UNDER ARTICLE 227 OF
CONSTITUTION OF INDIA PRAYING TO a) SET ASIDE
THE ORDER DATED 30.05.2018 PASSED ON I.A.NO.7 BY
THE XII ADDITIONAL CITY CIVIL JUDGE, AT
BANGALORE IN O.S.3149/2011 PRODUCED AT
ANNEXURE-L; b) DIRECT THE XII ADDITIONAL CITY
CIVIL JUDGE, AT BANGALORE TO TRY AND DECIDE
THE ADDITIONAL ISSUE OF COURT FEE AS A
PRELIMINARY ISSUE BEFORE PROCEEDING TO
RECORD FURTHER EVIDENCE OF PW1 AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP, THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
This petition is by the sixth defendant in O.S.No.3149/2011 on the file of XII Addl. City Civil and Sessions Judge (CCH-27) Bengaluru [for short 'the civil Court']. The petitioner is aggrieved by the civil Court's order dated 30.04.2018, and the civil Court by its impugned order has rejected the petitioner's application (I.A.No.7) under Section 11(2) -4- NC: 2023:KHC:35122 WP No. 25219 of 2018 of the Karnataka Court Fees and Suits Valuation Act, 1958 [For short, 'the Court Fees Act']. The civil Court has rejected the application with two crucial observations viz., that the evidence of the plaintiff is commenced even before the Additional Issue on 'the proper valuation and payment of proper court fees' is raised and that if it is of the opinion, at the time of final adjudication that the court fee paid is deficit, the same can be recovered from the plaintiff.
2. The first respondent - the plaintiff has filed this suit in O.S.No.3149/2011 for directions to the defendants, including the petitioner, to vacate and deliver the vacant possession of the schedule properties, for declaration that the sale deed executed by the legal heirs of K.C. Iyya in favour of some of the defendants, including the petitioner, would not be binding on him and for mandatory injunction to demolish certain structures in the suit schedule properties. The first respondent to substantiate the -5- NC: 2023:KHC:35122 WP No. 25219 of 2018 claim for the relief as aforesaid has relied upon certain earlier proceedings including the judgment and decree in RFA.No.181/1987.
3. The petitioner is contesting the suit denying the first respondent's right to the relief as sought notwithstanding the decree in RFA.No.181/1987. Crucially for the present purposes, the petitioner has disputed the valuation of the suit properties and the petitioner's defense in this regard is as found in paragraph No.13 of the written statement, which reads as under:
"The Plaintiff had not valued the suit by considering the market value of the Property or the sale consideration referred in the Sale Deed dated 02-06-1994, 29-08-1994, 14-09- 1994, 02-12-1994, 15-02-1995, 23-9-1998, 25-09-1998 executed by Legal heirs of K.C.Iyya in favour of the Defendant No.5 to 8 and conveniently valued for Rs.1,10,000/- for all the 3 schedule A, B, C Property is totally incorrect baseless and illegal. Hence the Plaintiff ought to have assessed the market value by producing the Sub-Registrar minimum guideline value available on record -6- NC: 2023:KHC:35122 WP No. 25219 of 2018 as on the date of the suit and ought to have paid the court fee by filing proper valuation slip. Hence the suit filed by the Plaintiff is undervalued and the plaint liable to be rejected on the said ground alone. It is settled law reported in 2000 (6) Kar.LJ 431 between Mohammed Mirajuddin Vs. M.A.Iqbal the lordship held at payment of court fee determination on the market value - Sub- Registrar Guidelines Value is to be accepted. It is the duty of the Hon'ble Court as per Section 34 of the Stamp Act to framed preliminary issue regarding court fee and determine the issue of court fee at the threshold."
This defense is not based on the provisions of Section 31 of the Court Fees Act, and this would be crucial for the present purposes as elaborated later in this order.
4. The civil Court has framed Issues, and the first respondent has commenced evidence. The petitioner, at this stage, has filed application for framing of additional Issues which is allowed and the additional Issues are framed on 22.08.2017. These additional issues thus framed read as under: -7-
NC: 2023:KHC:35122 WP No. 25219 of 2018 "(1) Whether the suit for possession without declaration of title is maintainable, subsequent to the execution of the Recovery Deed dated 22.12.2009 in favour of defendant Nos. 5 to 8.
(2) Whether suit is properly valued and the court fee paid is correct."
5. It is after the additional Issues are thus framed and with further progress in evidence, the petitioner has filed the subject application. The petitioner has filed this application asserting that the suit is neither properly valued nor proper court fee is paid, and therefore, the said additional Issues must be treated as preliminary Issues. Though the petitioner has filed an elaborate affidavit in support of the application, it would suffice for this Court to record that the petitioner has disputed the valuation based on the guideline value notified by the State Government asserting that the valuation must be based on the market value.
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NC: 2023:KHC:35122 WP No. 25219 of 2018
6. Sri. B. Vachan, the learned counsel for the petitioner, is heard in the light of the canvass by the first respondent's learned counsel, Ms. Ankitha G. Shelke, that this Court must consider the merits of the impugned order and the petitioner's grievance against such order in the light of the Full Bench decision of this Court in Venkatesh R. Desai Vs. Smt. Pushpa Hosamani and Others reported in ILR 2018 KAR 5095.
7. Sri. B. Vachan submits that he must be permitted to make a distinction and canvass that the proposition exposited by the Full Bench of this Court in Venkatesh R. Desai supra would not be applicable in the present case. He submits that the civil Court should have considered the question of the applicability of the provisions of Section 31 of the Court Fees Act under which the first respondent has valued the suit, and he further submits that the first respondent has not pleaded any circumstance from -9- NC: 2023:KHC:35122 WP No. 25219 of 2018 which a preemptive right could be discerned to justify the valuation of the plaint under this Section.
8. Sri. B. Vachan submits that if the contest is about the valuation of the subject matter of the suit, the proposition exposited by the Full Bench in Venkatesh R. Desai supra could be applied, but where the controversy is whether the valuation must be under a particular provision of the Court Fees Act, such question should be examined by the concerned Court under Section 11(1) of the Court Fees Act even without interference by the defendants. He emphasizes that in the present case, the civil Court's office had raised an objection and pursuant thereto, the first respondent was called upon to file a corrected valuation. Though a revised valuation slip is filed, the suit is continued to be valued under Section 31 of the Court Fees Act. If the plaint does not disclose the cause that would enable valuation of
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NC: 2023:KHC:35122 WP No. 25219 of 2018 subject matter under Section 31 of the Court Fees Act, the petitioner's application is well found in law.
9. These submissions are considered, and this Court is not persuaded to interfere with the civil Court's order on either of the two grounds at this stage. While it is not disputed that the civil Court's office did indeed raise objections on the valuation and certain corrected valuation is filed by the first respondent thereafter, it is also undisputed that the petitioner has filed application for framing Issues based on the valuation of the subject property without objecting to the valuation of the suit under Section 31 of the Court Fees Act. If the additional Issue is framed on the basis of the defense as set out in that regard, unless the Issues are recast, and if permissible in law, the petitioner cannot be extended any indulgence.
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NC: 2023:KHC:35122 WP No. 25219 of 2018
10. Even on the ground of interpretation of Section 11(1) of the Court Fees Act and the respondent's response to the objections by the office of the civil Court, this Court is not persuaded, because the petitioner has participated in the proceedings without taking a precise defense on the applicability of Section 31 of the Court Fees Act. Therefore, this Court must dispose of the petition reserving liberty to the petitioner to file application for recasting of second additional Issue.
11. If indeed such application is filed, the civil Court must consider the same in accordance with law after due opportunity to all the contesting parties. It would be needless to observe that if the application is filed in terms of the liberty now granted, the same should be considered on its own merit in accordance with law, without being influenced by observation in the course of this order as all observations are limited
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NC: 2023:KHC:35122 WP No. 25219 of 2018 to test the petitioner's grievance as against the impugned order.
The petition is disposed of with this liberty.
Sd/-
JUDGE RR