Karnataka High Court
Smt Rajalakshmi Sadagopan vs Smt Vasantha Jagadeesh on 13 March, 2014
Author: Mohan .M.Shantanagoudar
Bench: Mohan .M. Shantanagoudar
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13TH DAY OF MARCH, 2014
BEFORE
THE HON'BLE MR.JUSTICE MOHAN .M. SHANTANAGOUDAR
C.R.P. NO.262/2012
BETWEEN :
Smt.Rajalakshmi Sdagopan
Aged 50 years
w/o.Sadagopan Rajamani
r/at.No.48/1, Ground Floor
Millers Tank Bund Road
Bangalore-52 .. Petitioner
(By Sri A.Madhusudhana Rao, Adv.,)
AND :
1. Smt.Vasantha Jagadeesh
Aged 76 years
r/o. Plot-3, Nannankudil
A4, 1st Floor, sabapathy Street
Narmada Nagar, Ullagaram
Chennai-91
2. K.Rajaiah
Aged 72 years
s/o.N.Kodandarama Naidu
3. R.Vijay Krishna
Aged 38 years
s/o.K.Rajaiah
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4. Shravan Krishna
Aged 12 years
s/o.R.Vijay Krishna
minor, rep.by
respondent No.3, being the
father and natural guardian
respondents 2 to 4 are r/o.
No.40, IV Main, BEML Layout
Rajarajeshwari Nagar
Bangalore-98
5. Sadagopan Rajamani
Aged 59 years
s/o.Rajamani Jagannathan
r/at.No.48/1, Ground Floor
Millers Tank Bund Road
Bangalore-52
6. Smt.Gayathri Thamizharasan
Aged 30 years
w/o.Thamizharasan
r/at.No.48/1, I Floor
Millers Tank Bund Road
Bangalore-52
7. S.Natarajan
Aged 72 years
s/o.late Subramania Pillai
r/o.Sri Krishna Coffee Works
No.20-A, Andar Main Road
Kulitalai
Trichy Dist.
8. Subramanya Bhat
s/o.late Narayana Bhat
aged 63 years
Singapore Garden
Flat No.271
Gubbalala Gate
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Kanakapura Main Road
Bangalore-62
9. N.Kannan
Aged 61 years
s/o.late S.Narayanan
'Nalaja', C-4, 269, 3rd Main Road
Domlur II Stage, III Phase
Bangalore-71
10. The Sr.Manager
Canara Bank
Cunningham Road Branch
Bangalore-52
11. The Sr.Manager
Syndicate Bank
Millers Road Branch
Bangalore
12. The Sr.Manager
State Bank of Mysore
Cunningham Road Branch
Bangalore-52 .. Respondents
(By Sri G.Sukumaran, Adv., for R1)
This petition is filed under Section 115 of CPC against
the order dated 13.2.2012 passed on application in
O.S.No.25632/2008 on the file of the 25th Addl.City Civil
Judge, Bangalore CCH.29, rejecting the application filed
under Order 7 Rule 11(c) CPC.
This petition coming on for admission, this day the
Court made the following:-
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ORDER
By the impugned order, the Court below has rejected the application filed under Order VII Rule 11 of CPC.
2. The records reveal that the first respondent filed a suit for partition and separate possession. The petitioner being defendant No.5, filed application under Order VII Rule 11 of CPC for rejection of the plaint on the ground that the plaintiff ought to have paid Court fee by valuing the suit under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act ('Act' for short) and not under Section 35(2) of the Act. The said application is rejected by the Court below on the ground that the plaintiff has specifically pleaded in paragraph-9 of the plaint that she is in joint possession of the property along with other defendants.
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3. Sri Madhusudhan Rao, learned counsel appearing for the petitioner submits that the Court below has erred in misreading the contents of paragraph-9 of the plaint; the plaintiff, in none of the paragraphs has averred that she is in joint possession of the property and therefore the plaintiff ought to have paid Court fees by valuing the suit under Section 35(1) of the Act.
4. Sri Sukumaran, learned counsel appearing for the first respondent submits that the revision petition is not maintainable; the plaintiff is justified in valuing the suit under Section 35(2) of the Act; since the issue is already raised to decide the question on sufficiency of the Court fees, it was open for the petitioner to satisfy the Court on the said issue whenever Issue No.6 was heard.
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5. Even assuming that the revision petition is not maintainable, writ petition is maintainable. Since the roaster to hear GM-CPC matters is before me, the matter is heard by me.
6. In my considered opinion, the Court below is not justified in entertaining the application filed by defendant No.5 for rejection of the plaint at the preliminary stage. For rejection of the plaint under Order VII Rule 11(c) CPC, the pre-requisite condition is that the plaintiff should not have paid the correct Court fee, despite the Court directing the plaintiff to pay deficit Court fee. Only when such orders are passed by the Court below and in case if the plaintiff does not obey the orders of Court by paying deficit Court fee, then the plaint shall be rejected under Order VII Rule 11 CPC. Thus, the proper course for the Trial Court is to hear Issue No.6 as preliminary issue and thereafter pass appropriate orders on the -7- said issue. If the issue held is against the plaintiff and consequently, if the plaintiff is directed by the Court below to pay deficit Court fee, the plaintiff would be bound by the said order. In case if the plaintiff does not pay the deficit Court fee as ordered by the Court below, the plaint shall be rejected under Order VII Rule 11(c) of CPC.
In the matter on hand, the Court below while considering the application under Order VII Rule 11
(c) at the premature stage, has wrongly observed that the plaintiff has pleaded that she is in joint possession of the property along with other defendants.
7. Paragraph-9 of the plaint on the basis of which the Trial Court passed the order, reads thus:-
"9. The plaintiff submits that, the defendant Nos.1, 4, 5 and 6 are jointly in occupation of the suit schedule 'A' property and have also misused the -8- privilege of their being in possession of the suit schedule 'A' and 'B' property."
From the aforementioned paragraph, it is clear that the petitioner has not averred that she is in joint possession of the property along with other defendants. Therefore, it is clear that the Trial Court has misdirected itself by reading the plaint wrongly.
Be that as it may, since Issue No.6 has to be considered as preliminary issue by the Court below, this Court does not wish to comment anything further on merits of the matter. Accordingly, the following order is made:-
The impugned order, dated 13.2.2012, stands set aside. The Trial Court is directed to hear Issue No.6 as preliminary issue and thereafter shall proceed with the matter as per law. It is open for the parties -9- to take such steps as are open to them in law after the decision on Issue No.6 by the Court below.
Petition is allowed accordingly.
Sd/-
JUDGE *ck/-