Karnataka High Court
Sunil S/O. Gopal Shetty vs M/S.Hotal Arpan on 11 August, 2014
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11TH DAY OF AUGUST, 2014
BEFORE
THE HON'BLE MR. JUSTICE H.BILLAPPA
WRIT PETITION No.105177/2014 (GM-CPC)
BETWEEN
1. SHRI. SUNIL S/O. GOPAL SHETTY
AGE: 48 YEARS,
OCC: BUSINESS
R/O.HOUSE NO. 140,
CHAMPA BUILDING OUTHOUSE
MANGALWAR PETH, TILAKWADI
BELGAUM-590 006.
2. SHRI.SUDHIR S/O. GOPAL SHETTY
AGE: 41 YEARS, OCC: BUSINESS
R/O. H NO. 214, CHATRAPATI ROAD,
2ND RAILWAY GATE,
TILAKWADI, BELGAUM-590 006.
3. SHRI.KIRAN S/O. GOPAL SHETTY
AGE: 39 YEARS, OCC: BUSINESS
R/O. H NO. 214, CHATRAPATI ROAD,
2ND RAILWAY GATE
TILAKWADI, BELGAUM-590 006.
4. SMT.RATNA W/O. GOPAL SHETTY
AGE: 70 YEARS
OCC: HOUSEHOLD WORK
R/O. H NO. 214, CHATRAPATI ROAD,
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2ND RAILWAY GATE
TILAKWADI, BELGAUM-590 006.
5. MISS.SARITA D/O. GOPAL SHETTY
AGE: 43 YEARS, OCC: NIL.
R/O. H NO. 214, CHATRAPATI ROAD,
2ND RAILWAY GATE
TILAKWADI, BELGAUM-590 006. ... PETITIONERS
(BY SRI. M G NAGANURI, ADV.)
AND
1. M/S.HOTAL ARPAN
193/A, C D DESHMUKH ROAD
TILAKWADI, BELGAUM
R/BY ITS PARTNERS
RESPONDENT 2 TO 4.
2. SHRI.NAVEENACHANDRA K.
S/O. K GOPALKRISHNA BHAT
ORCHID HEDAS HOUSING COMPLEX,
R C NAGAR, TILAKWADI,
BELGAUM-590 006.
3. SHRI. ARUN S/O. VASANTH PARAB
AGE: 60 YEARS, OCC: BUSINESS
FLAT NO. 304, GANESH NANDAN
OPP: HOTEL PANCHAMRUTA,
MARATHA COLONY, CONGRESS ROAD,
BELGAUM-590 006.
4. SHRI.JAGANNATH N POOJARY
AGE: 53 YEARS, OCC: BUSINESS
FLAT NO. 208, ROY ROAD
TILAKWADI, BELGAUM-590 006.
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5. MRS.SUNITA (D/O. GOPAL SHETTY)
W/O. PRABHAKAR SHETTY
AGE: 50 YEARS, OCC: HOUSEHOLD.
R/O. C/O. RATNA W/O. GOPAL SHETTY,
H NO. 214, CHATRAPATI ROAD,
2ND RAILWAY GATE,
TILAKWADI, BELGAUM-590 006. ... RESPONDENTS
(BY SRI.SACHIN S MAGADUM, ADV. FOR C/R.1 TO 4)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
QUASH THE ORDER DATED 19.04.2014 PASSED BY THE IV
ADDITIONAL CIVIL JUDGE & JMFC BELGAUM ON
PRELIMINARY ISSUE IN OS 321/2014 PRODUCED AT
ANNEXURE-C, AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS, THIS
DAY, THE COURT, MADE THE FOLLOWING:
ORDER
The notice sent to respondent No.5 is not returned. The respondents 1 to 4 are the contesting respondents. Therefore, the matter is heard on merits.
2. In this writ petition under Articles 226 and 227 of the Constitution of India, the petitioners have called in question the order dated 19.04.2014 passed by the IV :4: Addl.Civil Judge and JMFC, Belgaum, on preliminary issue in O.S.No.321/2004 vide annexure-C.
3. By the impugned order at Annexure-C, the trial court has answered the preliminary issue in the affirmative.
4. Aggrieved by that, the petitioners have filed this writ petition.
5. Briefly stated the facts are;
The respondents 1 to 4 have filed suit in O.S.No.321/2014 for possession, damages, mesne profits and permanent injunction. The petitioners have filed I.A.No.6 to frame an additional issue regarding court fee and pecuniary jurisdiction. The trial court by its order dated 17.3.2014 has allowed I.A.No.6 and framed additional issue. Thereafter, additional issue has been tried as preliminary issue. By order dated 19.4.2014 the trial court has answered the preliminary issue in the affirmative holding that the respondents 1 to 4 have valued the suit under section 41(1)(d) of the Karnataka :5: Court Fees & Suits valuation Act and have paid sufficient court fee. Aggrieved by that, the petitioners have filed this writ petition.
6. The learned Counsel for the petitioners contended that the impugned order cannot be sustained in law. He also submitted that the suit is for recovery of possession under the provisions of Specific Relief Act and therefore, Section 28 of the Karnataka Court Fees and Suits Valuation Act, 1958 is attracted. The respondents 1 to 4 have valued the suit under Section 41(1)(d) which is not correct. Therefore, the impugned order cannot be sustained in law. He also submitted the reliefs for damages and mesne profits are not valued at all. The trial court has failed to consider this. Therefore, the impugned order cannot be sustained in law.
7. As against this, the learned Counsel for respondents 1 to 4 submitted that the impugned order does not call for interference. He also submitted that the petitioner and the respondents 1 to 4 are landlord and tenants and the :6: petitioner has been dispossessed illegally and therefore, section 41(1)(d) of the Karnataka Court Fees & Suits Valuation Act is attracted and court fee is paid under Section 41(1()(d) of KCF & SV Act and it is proper. Further, he fairly conceded that the suit is not valued for the other reliefs.
8. I have carefully considered the submissions made by the learned Counsel for the petitioners.
9. The point that arise for my consideration is; Whether the impugned order calls for interference?
10. It is relevant to note, the suit in O.S.No.321/2014 has been filed by the respondents 1 to 4 for recovery of possession alleging illegal dispossession and also claiming damages, mesne profits and permanent injunction. Admittedly, the reliefs for damages and mesne profits are not valued and no court fee has been paid. The suit is valued under section 41(1)(d) of the Karnataka Court Fees and Suits Valuation Act. The learned Counsel for the petitioners contended that the suit is for recovery of possession under :7: the provisions of Specific Relief Act and therefore, section 28 of the KCF & SV Act is attracted and not Section 41(1)(d) of the KCF & SV Act. The trial court has not considered whether section 28 of the KCF & SV Act is attracted or not. It has also not considered that the reliefs for damages and mesne profits are not valued. Therefore, the matter requires reconsideration.
11. Accordingly, the writ petition is allowed and the impugned order dated 19.4.2014 passed by the trial court in O.S.321/2004 on preliminary issue is hereby set aside. The Trial court is directed to reconsider the preliminary issue by giving opportunity to the parties and in the light of the observations made in the course of this order.
The parties shall co-operate in the disposal of the matter expeditiously.
Sd/-
JUDGE Sub/