Karnataka High Court
M/S Meghana Land Developers Pvt Ltd vs Shri Sriramappa on 25 September, 2024
Author: R Devdas
Bench: R Devdas
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NC: 2024:KHC:39829
WP No. 20559 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE R DEVDAS
WRIT PETITION NO. 20559 OF 2024 (GM-CPC)
BETWEEN:
M/S MEGHANA LAND DEVELOPERS PVT. LTD.,
NO. 127, 'NISARAGA',
KADUBEESANAHALLI VILLAGE,
PANATHUR POST, VARTHUR,
BANGALORE - 560 103,
REPRESENTED BY ITS MANAGING DIRECTOR
H.K. VENKATESH, S/O H.V. KRISHNA IYER,
AGED ABOUT 49 YEARS.
...PETITIONER
(BY SMT. SUMATHI S, ADVOCATE)
AND:
Digitally signed SHRI. SRIRAMAPPA,
by JUANITA S/O DODDA VENKATARAMAIAH,
THEJESWINI AGED ABOUT 58 YEARS,
Location: HIGH R/AT NO. 921, 'HARSHITHA NILAYA',
COURT OF
KARNATAKA 5TH 'B' MAIN, CHOWDESHWARI LAYOUT,
MARATHAHALLI, BANGALORE - 560 037.
...RESPONDENT
(BY SRI. M. VEERABHADRAIAH, ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASHING THE ORDER
DATED 08.04.21 DISMISSING THE IA NO. 6 FILED UNDER
ORDER VI RULE 17 OF CPC IN OS NO. 4310/2016 ON THE FILE
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NC: 2024:KHC:39829
WP No. 20559 of 2024
OF V ADDL CITY CIVIL JUDGE AT BENGALURU (CCH-13) VIDE
ANNEXURE-A AND ORDER DATED 08.07.24 DISMISSING THE
IA NO. 7 UNDER SECTION 151 OF CPC READ WITH SECTION 11
OF THE KARNATAKA COURT FEES AND SUITS VALUATION ACT
IN OS NO. 4310/16 ON THE FILE OF V ADDL. CITY CIVIL
JUDGE AT BENGALURU (CCH-13) VIDE ANNEXURE-B, BY
ALLOWING THIS PETITION AND ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE R DEVDAS
ORAL ORDER
Learned counsel Sri.M.Veerabhadraiah, has entered appearance for respondent, who is the plaintiff before the trial Court.
2. The issue brought before this Court is regarding the Court fee payable by the plaintiff in the original suit in O.S.No.4310/2016. Although it was pointed out by the learned counsel for the respondent that earlier an application under Order VI Rule 17 read with Section 151 of CPC regarding the Court fee payable by the plaintiff was considered by the trial Court in I.A.No.6 and orders -3- NC: 2024:KHC:39829 WP No. 20559 of 2024 were passed on 08.04.2021 rejecting the said application and further the very same relief is sought by filing another application in I.A.No.7 under Section 151 of CPC read with Section 11 of the Karnataka Court Fees and Suits Valuation Act, 1958, (hereinafter referred to as 'the Act' for short) to adjudicate the office objections raised when the suit was filed, as it was noted that the Court fee is required to be filed under Section 38(1) of the Act. The said application is however rejected by the impugned order dated 04.07.2024.
3. Learned counsel for the petitioner/defendant pointed out to the prayer made in the suit, where a mandatory injunction is sought to direct the defendant to execute a deed of cancellation of the agreement of sale dated 22.02.2013. In this regard, attention of this Court was drawn to a decision of this Court in the case of Sri.Venkatesh.S Vs. The State of Karnataka in W.P.No.10782/2018 dated 29.05.2018. This Court held has follows:
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NC: 2024:KHC:39829 WP No. 20559 of 2024 "15. It is settled position of law that where a person who is not a party to the instrument seeks for a declaratory relief to the effect that the said instrument is not binding on the plaintiff, the valuation under Section 24(d) of the Act can be resorted to, whereas a party to a document, who seeks for relief regarding the said document would be required to value the plaint in terms of Section 38 of the Act, which provides for cancellation of instruments. It appears that where a person is a party to an instrument, any relief howsoever crafted would amount to a relief relating to cancellation of the said instrument and hence, appropriate valuation under Section 38 of the Act is required to be made. In the present case, there is no reason to exempt valuation under Section 38 of the Act. The mere allegations of fraud which, even if accepted, relates to partial failure of consideration and does not permit the plaintiff to value the suit under Section 24(d) of the Act thereby getting over the valuation under Section 38 of the Karnataka Court Fees and Suits Valuation Act, which the plaintiff considers as onerous.
16. The position of law has been settled by the Hon'ble Supreme Court in the case of Suhrid Singh @ Sardool Singh v. Ranbir Singh & Ors., -5- NC: 2024:KHC:39829 WP No. 20559 of 2024 in Civil Appeal Nos.2811-2813/2010 dated 29.3.2010 at para 6 of its judgment, which is 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."
4. Learned counsel for the petitioner/defendant would therefore submit that merely because the plaint and the prayer have been drafted craftily to circumvent the payment of the Court fee, the Court should not give into such craft and go deeper into the contentions raised in the plaint and thereafter decide whether Court fee is required to be paid under Section 38 or any other provision as stated by the plaintiff.
5. Per contra, learned counsel for the respondent/plaintiff seeks to point out that the earlier order on I.A.No.6 was passed on 08.04.2021, and the -6- NC: 2024:KHC:39829 WP No. 20559 of 2024 same was not questioned by the petitioner/defendant. There is an inordinate delay of more than 1000 days in questioning the said order. Nevertheless, learned counsel for the respondent/plaintiff would submit that in the subsequent order the Court has taken note of the submissions made on behalf of the plaintiff that the issue with respect to the Court fee may be framed and adjudicated after conclusion of the trial. Learned counsel submits that the suit is filed in the year 2016 and the petitioner/defendant is making all efforts to derail the proceedings without stepping into the witness box or even cross examining the plaintiff/witness. The learned counsel however, submits that the plaintiff is ready and willing to pay the requisite Court fee and he has not at any point of time stepped back from paying the necessary Court fee. Learned counsel for the respondent/plaintiff submits that having regard to the prayer made in the plaint, the provision applicable is Section 26(C) of the Karnataka Court Fees and Suits Valuation Act, 1958, and not Section
38. The learned counsel also submitted that, at any rate, -7- NC: 2024:KHC:39829 WP No. 20559 of 2024 the relief claimed by the plaintiff will be in terms of Section 31 of the Specific Relief Act.
6. Having regard to paragraph No.3 of the plaint, this Court finds that plaintiff is claiming to be the absolute owner in possession of the suit schedule property. It is also admitted that the plaintiff entered into an agreement with the defendants on 22.02.2013 to sell the property to the defendants and the agreement of sale was executed in the office of the Sub-Registrar, Banaswadi, Bengaluru. The plaintiff is therefore, seeking a prayer to direct the defendant to execute a deed of cancellation of the agreement of sale dated 22.02.2013. In this background, having regard to the settled position of law that where a person is a party to the document and seeks for relief regarding the said document, such party would be required to value the plaint in terms of Section 38 of the Act. A word of caution has been issued in various judgments of the Hon'ble Supreme Court, which has been noticed by the Co-ordinate Bench in the judgment cited by -8- NC: 2024:KHC:39829 WP No. 20559 of 2024 the learned counsel for the petitioner namely Sri.Venkatesh.S (supra) that any relief howsoever crafted would amount to a relief relating to cancellation of the said instrument and hence appropriate value under Section 38 of the Act is required to be paid. It was therefore held that mere allegation of fraud, even if accepted, relates to partial failure of consideration and does not permit the plaintiff to value the suit under Section 24(D) of the Act, thereby getting over the valuation under Section 38 of the Act.
7. Having regard to the said position of law, this Court is of the considered opinion that the plaintiff should have paid the court fee under Section 38(1) of the Act and not under Section 26(C) of the Act. Insofar as the submission made by the learned counsel to the respondent/plaintiff that the relief claimed by the plaintiff would at any rate fall under Section 31 of the Specific Relief Act, 1963, that contention will be kept open to be considered by the trial Court.
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NC: 2024:KHC:39829 WP No. 20559 of 2024
8. Consequently, the writ petition is allowed. The impugned order dated 08.04.2021 passed on I.A.No.6 and 08.07.2024 on I.A.No.7 in O.S.No.4310/2016 are hereby quashed and set aside. The plaintiff is directed to pay the Court fee in terms of Section 38 of the Karnataka Court Fee and Suits Valuation Act, 1958. The plaintiff is directed to pay the court fee within a period of two weeks from the date of this order. This Court should also notice the fact that the suit was filed in the year 2016, and it is contended by the learned counsel for the plaintiff that the defendant has failed to cross-examine the plaintiff witness from the year 2020. Therefore, learned V Additional City Civil Judge, Bengaluru, CCH-13, is hereby directed to endeavour to dispose of the suit as expeditiously as possible and at any rate within a period of one year from the date of receipt of a copy of this order.
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(R DEVDAS) JUDGE rv CT: BHK