Karnataka High Court
Smt M Veena vs Smt Suma on 14 November, 2018
Author: K.N.Phaneendra
Bench: K.N. Phaneendra
1 ®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF NOVEMBER, 2018
BEFORE
THE HON'BLE MR.JUSTICE K.N. PHANEENDRA
MFA NO.7023/2017 (CPC)
BETWEEN
SMT M VEENA
WIFE OF HONNEGOWDA
D/O LATE MADEGOWDA
AGED ABOUT 41 YEARS
R/AT NO 940, A. THIRTHANKARA
ROAD, SIDDARTHANAGARA LAYOUT
MYSURU - 570 011 ... APPELLANT
(BY SRI. BHASKAR HEGDE, ADV.)
AND
1. SMT SUMA
D/O LATE MADEGOWDA
W/O HONNEGOWDA
R/O NO.62, SRI KRISHNA
MOSAIC TILES, BILAGUMBA CROSS
NELAMANGALA ROAD, MANJUNATHA NAGARA
RAMANAGARA TOWN - 571 511
2. SMT VIJAYAMMA
W/O LATE MADEGOWDA
AGED ABOUT 66 YEARS
MUDAGERE VILLAGE
MALUR HOBLI
CHANNAPATNA TALUK - 571 501
2
3. SRI M. SANTHOSH
S/O LATE MADEGOWDA
AGED ABOUT 35 YEARS
MUDAGERE VILLAGE
MALUR HOBLI
CHANNAPATNA TALUK - 571 501
4. SMT NALINA M
W/O LINGEGOWDA G. S.
D/O LATE MADEGOWDA
AGED ABOUT 43 YEARS
NO.4088, 3RD CROSS
SHANKARANAGAR
CHAMUNDESHWARI
TEMPLE STREET
MANDYA CITY - 571 401
5. SMT RASHMI M
W/O SHIVANNA
D/O LATE MADEGOWDA
AGED ABOUT 41 YEARS
NO.294, BHAVYA MEDICAL
& GENERAL STORES
7TH MAIN ROAD, NEAR BAJAJ SHOW ROOM
100 FEET ROAD, BSK III STAGE
NEAR DEVEGOWDA PETROL BUNK
BENGALURU 560 085
6. SMT PREETHI M
W/O SURESH B
D/O LATE MADEGOWDA
AGED ABOUT 37 YEARS
NO.887, III CROSS, E & F BLOCK
AGNI HAMSA ROAD
KUVEMPUNAGAR, MYSURU-570 012
7. SMT PALLAVI M
W/O SHIVAKUMARA
3
D/O LATE MADEGOWDA
NO.1194 III MAIN, MANASANAGARA
NAGARABHAVI, BENGALURU-560 072
8. THE MANAGING DIRECTOR
INDIAN TELECOM DEPARTMENT
ABHINAY COMPLEX, BVK IYENAGAR ROAD,
BENGALURU, PRESENTLY THE GENERAL MANAGER
(NWP-CFA), OFFICE OF PGM, BSNL
BANGALORE TELECOM DISTRICT
TELEPHONE HOUSE, 5TH FLOOR
CTO COMPLEX, RAJ BHAVAN ROAD
BENGALURU-560 001
9. STATE BANK OF MYSORE
MUDUGERE BRANCH
MUDUGERE, CHANNAPATNA
TALUK 571 501
10. SMT B S VYSHALI
W/O N NARENDRA KUMAR
AGED ABOUT 46 YEARS
NO.606 B.H.C.S. LAYOUT
WARD NO.182 8TH MAIN
UTTARAHALLI VILLAGE
BANGALORE SOUTH TALUK -560 061
... RESPONDENTS
THIS MFA IS FILED UNDER ORDER 43 RULE (1)(a)
OF CODE OF CIVIL PROCEDURE 1908 PRAYING TO ALLOW
THIS APPEAL AND SET ASIDE THE ORDER DATED
18.07.2017 PASSED BY THE III ADDL.DISTRICT AND
SESSIONS JUDGE, RAMANGARA ON I.A.NO.3 IN
R.A.NO.60/2016 AND CONSEQUENTLY DISMISS THE SAID
APPLICATION.
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THIS MFA HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 05.10.2018 COMING ON FOR
'PRONOUNCEMENT OF JUDGMENT, THIS DAY K.N.
PHANEENDRA, J. DELIVERED THE FOLLOWING:
JUDGMENT
The appellant has preferred this appeal against the order passed on IA No.III by the III Additional District and Sessions Judge, Ramanagara in R.A.No.60/2016 dated 18.7.2017 in holding that, the said Court has no pecuniary jurisdiction to try the appeal and consequently returned the appeal to the appellant (plaintiff No.1 in O.S.No.80/2012) to present the same before the High Court of Karnataka, as the valuation of the subject matter of the suit and appeal exceeds Rs.10,00,000/- (Rupees Ten Lakhs) only.
2. The Registry, after filing of the appeal has raised objections with regard to the jurisdiction of this Court as the subject matter is less than Rs.10,00,000/- 5 and the appeal is also not maintainable under Order XLIII Rule 1(a) of CPC.
3. Keeping open the said office objection, the matter was posted for hearing the counsel's submission regarding the maintainability of the appeal.
4. No notices have been issued to the respondents as the maintainability of the appeal itself has been questioned in this appeal.
5. The first objection raised by the office is that the appeal is not maintainable under Order XLIII Rule 1(a) of CPC because of the simple reason that the Appellate Court i.e. the III Additional District and Sessions Judge, Ramanagara, has returned the appeal for proper presentation before the appropriate court. Therefore, the said order virtually falls under Order VII Rule 10 of CPC, though specifically the provision has 6 not been mentioned by the III Additional District Judge while returning the memorandum of appeal.
6. Order XLIII Rule 1(a) of CPC refers to the appeals to the Appellate Courts and as it is, the order passed by the III Additional District Judge, Ramanagara, the next appellate court would be the High Court. However, Order VII Rule 10 of CPC refers to return of plaint which is mutatis mutandis applicable to appeals also. Therefore, the said objection of the office deserves to be overruled.
7. The next question which arose for consideration after hearing the learned counsel for the appellant is that -
'Whether the Trial Court order is proper and correct in returning the appeal for proper presentation before the High Court?'.
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8. In order to consider this particular aspect, it is just and necessary to have the brief factual matrix of this case:
The appellant before the District Court- Smt.M.Veena and another by name Smt.Suma have jointly filed a suit in O.S.No.80/2012 for partition and separate possession of their joint legitimate share in the suit schedule property and sought for partition of their 2/8th joint share, valuing the joint share at Rs.14,30,500/- for the purpose of jurisdiction. The said suit is partly dismissed to the effect that, the plaintiffs claim over the suit item Nos.3, 13, 19, 25, 26, 29, 36, 42 in 'A' schedule properties and 'B' suit schedule properties were dismissed. However, the suit of the plaintiff Nos.1 and 2 is decreed to the extent of 9/64th share in item Nos.1, 2, 4-12, 14-18, 20 to 24, 27, 28, 30 to 35, 37 to 41, 43, 44 and 45 in 'A' schedule properties, 8 against which judgment and decree, the first plaintiff-
Smt.Veena has preferred an appeal in R.A.No.60/2016 before the III Additional District and Sessions Judge, Ramanagara, bifurcating her share and valuing the appeal for a sum of Rs.7,15,250/- being the first plaintiff's share in the suit schedule property. The first plaintiff felt that, the value is less than Rs.10,00,000/-. Therefore, the appeal was preferred before the District Judge, Ramanagara.
9. It is also pertinent to note here that aggrieved by the same judgment and decree, defendants 1 and 2 Smt.S.Vijayamma and M.Santhosh have preferred an appeal before this Court in RFA No.1815/2016 valuing the subject matter of the suit as valued by the plaintiffs before the Trial Court for the purpose of jurisdiction for a sum of Rs.14,30,000/-.
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10. In this background, court has to examine whether the order passed by the III Additional District and Sessions Judge in R.A.No.60/2016 is proper and correct?
11. Both the appeals are before this Court i.e., MFA 7023/2017 and RFA 1815/2016. Therefore, the materials available in RFA 1815/2016 i.e., with regard to the valuation slip, decree passed by the trial Court and the plaint averments have to be looked into by this Court for the purpose of considering the appeals.
12. Learned counsel for the appellant in this regard strenuously contended that the learned District Judge has committed serious error in returning the Memorandum of Appeal holding that, the plaintiffs cannot bifurcate their shares and file the appeal before the Sessions Court at Ramanagara. They relied upon the provisions of Section 35(2) of the Karnataka Court- 10 Fees and Suits Valuation Act, 1958 (for brevity hereinafter referred to as 'the KCF & SV Act') for the purpose of arguing that individual share of the plaintiffs has to be taken into consideration for the purpose of Court fee and jurisdiction. Therefore, it is contended that the plaintiffs share i.e., the first plaintiff's share in the suit schedule property can be individually valued at Rs.7,15,250/- as the plaintiff's in the original suit valued the joint share of plaintiffs 1 and 2 at Rs.14,30,500/-. Therefore, it is the plaintiff's individual right to file an appeal as per their wish if they did not intend to prefer an appeal jointly. Therefore, the appeal was very well maintainable before the District Court. Therefore, returning of the Memorandum of Appeal is bad in law.
13. In order to appreciate the above said aspects, it is just and necessary to look into the plaint averments 11 as culled out in the judgment passed by the trial Court. As per the plaint, the plaintiffs' have jointly claimed partition and separate possession of their joint share in the suit 'A' and 'B' schedule properties. The judgment and decree of the trial Court also shows that, the decree was passed considering the joint share of plaintiff Nos.1 and 2 to the extent of 9/64th share in some of the properties as noted above. Even the valuation slip filed in O.S.No.80/2012 in respect of both the plaintiffs clearly discloses that, they have categorically stated that, they have filed the suit for the relief of partition and separate possession of their legitimate joint share in the suit schedule properties and they have valued the suit stating that the plaintiffs' together are entitled for 2/8th share and their joint share was valued at Rs.14,30,500/- and paid the fixed court fee as per Section 35(2) of the KCF & SV Act.
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14. The learned counsel for the appellant strenuously contends before this court that if the provision of Section 35(2) of the KCF & SV Act, 1958 is meaningfully and properly read, it is the single plaintiff's individual share has to be calculated for the purpose of Court fee and Jurisdiction, though the plaintiffs have jointly prayed for the decree, but they can very well bifurcate their share and file appeal before the appellate court.
15. In this regard, now let me consider the provision of Section 35 of the KCF & SV Act which reads as follows :-
"35. PARTITION SUITS: (1) In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff whose title to such property is denied, or who has been excluded from 13 possession of such property, fee shall be computed on the market value of the plaintiff's share.
(2) In a suit for partition and separate possession of joint family property or property owned, jointly or in common, by a plaintiff who is in joint possession of such property, fee shall be paid at the following rates:
Rupees fifteen if the value of plaintiff's share is Rs.3,000 or less;
Rupees thirty if the value is above
Rs.3,000 but not more than
Rs.5,000;
Rupees one hundred if the value
is above Rs.5,000 but below
Rs.10,000 and
Rupees two hundred if the value
is Rs.10,000 and above.
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(3) Where, in a suit falling
under sub-section (1) or sub-section (2), a defendant claims partition and separate possession of his share of the property, fee shall be payable on his written statement computed on half the market value of his share or at the rates specified in sub-
section(2), according as such defendant has been excluded from possession or is in joint possession.
(4) Where, in a suit falling under sub-section (1) or sub-section (2), the plaintiff or the defendant seeks cancellation of decree or other document of the nature specified in section 38 separate fee shall be payable on the relief of cancellation in the manner specified in that section."
(emphasis supplied to the relevant words) 15
16. On a plain meaningful and meticulous reading and understanding of the above said provision, it clearly discloses that if a suit is filed for partition and separate possession of a particular share in joint family property, fee shall be computed on the market value of the plaintiff's share.
17. The using of the word "plaintiff's share"
indicates that it is the plaintiff's individual share which is the subject matter for the purpose of jurisdiction and the court fee. Even under Section 35(2) of the KCF & SV Act, in a suit for partition and separate possession of a joint family property filed by the plaintiff, who is in joint possession of the property, fee shall be computed and fixed court fee has to be paid. The learned counsel mainly concentrated on the words used i.e., 'a plaintiff' and 'plaintiffs' as emphasized and contended that it is 16 individual and single plaintiff's share has to be taken into consideration.
18. In my opinion, the said argument of the learned counsel is not tenable. When the plaintiffs themselves do not want at the time of filing of the suit for bifurcation of their separate share and they want the court to declare their joint share in the suit property, that shows that they would like to continue jointly so far as their joint share is concerned i.e. 2/8th share as claimed by the plaintiffs jointly in O.S.No.80/2012. The Court cannot direct the parties to claim the share in their individual capacity or not to claim the share jointly. The plaintiffs are the masters of their case and it is their will and wish either to take individual and separate shares or to take joint shares and to live happily and jointly together in their life. 17
19. Therefore, when the Court cannot mandate the plaintiffs to value the suit in a particular manner, it is the valuation that has been made by the plaintiffs that has to be taken into consideration. Therefore, it is clear that if the plaintiffs are more than one and if they claim individual share then they can join as plaintiffs in the plaint and then each plaintiffs' share has to be individually calculated and jurisdiction can be ascertained for the purpose of court fee and jurisdiction to the extent of each plaintiffs individual share. However, if the plaintiffs jointly claim their share in the suit schedule property, in that eventuality, the multiple plaintiffs who claim joint share, all the plaintiffs will become one component for the purpose of court fee and jurisdiction and they all constitute singe plaintiff so as to understand the words 'a plaintiff' and 'plaintiffs' as used in the above provision under Section 35 of the KCF & SV Act.
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20. It can very well be illustrated by the following illustration.
"If a joint family consisting of a father and four sons; father and three sons would like to continue jointly with respect to the joint family properties and they had no intention to separate themselves. However, one of the sons do not want to continue in the joint family but he do not want to file any suit against his father and other brothers. In order to set at rest the differences between them, the father and three brothers themselves file a suit for declaration of their joint share in the suit schedule property and to declare the share of the defendant in the suit schedule property and to give a share of the son who would like to go out from the family."
21. In the above situation, can the Court say that the plaintiffs cannot get declaration of their joint share in the suit schedule property and direct them to file a 19 suit for their individual share and value the suit individually of each plaintiff for the purpose of court fee and jurisdiction and to pay court fee? Certainly the court cannot direct the plaintiffs in such a manner. Plaintiffs are the masters of their case, they can file the suit seeking any relief under any law which provides them to file their suit. Therefore, in such an eventuality, all the plaintiffs i.e. father and other three sons in the above illustration form a common component i.e., single component as per the word 'a plaintiff' and the word 'plaintiffs'. In such an eventuality the joint share claimed by them has to be evaluated for the purpose of court fee and jurisdiction. Therefore, the said provision cannot be in any manner be interpreted.
22. Now, coming back to the present case, as I have already narrated the plaintiffs together claimed 20 joint share to the extent of 2/8th share and their share was valued at Rs.14,30,500/-. For the purpose of preferring an appeal, Section 49 of the KCF & SV Act will come into play which reads as follows :
"49. APPEALS: Save as provided in section 48, the fee payable in an appeal shall be the same as the fee that would be payable in the court of first instance on the subject matter of the appeal.
Provided that, in levying fee on a memorandum of appeal against a final decree by a person whose appeal against the preliminary decree passed by the court of first instance or by the court of appeal is pending, credit shall be given for the fee paid by such person in the appeal against the preliminary decree.
EXPLANATION (1): Whether the appeal is against the refusal of a relief or against the grant of the relief the fee payable in the appeal shall be the same as the fee that 21 would be payable on the relief in the court of first instance.
EXPLANATION(2): XXXX
EXPLANATION(3): XXXX
EXPLANATION(4): Where the relief
prayed for in the appeal is different from the relief prayed for or refused in the court of first instance, the fee payable in the appeal shall be the fee that would be payable in the court of first instance on the relief prayed for in the appeal.
EXPLANATION(5): XXXX"
(emphasis supplied)
23. Section 49 of the Act makes it abundantly clear that, in an appeal the fee shall be the same as the fee that would be payable in the Court, for the first instance on the subject matter of the appeal. Therefore, what is the subject matter in the appeal and the subject matter before the trial Court has to be taken into 22 consideration for the purposes of computing the court fee and jurisdiction. In this regard, Explanation (1) & (4) play a dominant and important role, where it says that, whether the appeal is against the refusal of a relief or against the grant of the relief, the fee payable in the appeal shall be the same as that of the fee that would be payable on the relief in the court at the first instance.
Therefore, whether the suit is fully decreed, partly decreed, partly dismissed or fully dismissed, it makes no difference for the purpose of evaluating the subject matter for the purpose of court fee and jurisdiction. Therefore, it is clear from the above said provision that for all practical purposes, the Court has to consider what is the evaluation made by the plaintiffs at the first instance before the Trial Court and the same shall be treated as the evaluation for the purpose of court fee and jurisdiction in order to ascertain the appellate jurisdiction.
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24. Though the learned counsel for the appellant relied upon various rulings, but none of the rulings are on the above said point. Therefore, in my opinion, the Court has to consider the valuation made by the plaintiffs jointly before the Trial Court for the purpose of court fee and jurisdiction. As I have already narrated, the plaintiffs have evaluated their share jointly for the purpose of jurisdiction at Rs.14,30,500/- which is the subject matter of the suit before the trial Court and as well as before the Appellate Court. Therefore, the plaintiff No.1 cannot alone bifurcate her share for the purpose of entrusting the appellate jurisdiction to the Principal District and Sessions Judge. It is the value that has been made by the plaintiffs jointly before the trial court has to be taken into consideration for the purpose of vesting the appellate jurisdiction. If the first plaintiff alone would like to file any appeal, then also 24 the total value of the subject matter before the trial Court has to be taken into consideration for the purpose of preferring an appeal.
25. Therefore, under the above said facts and circumstances, I do not find any strong reasons to interfere with the order passed by the Appellate Court i.e. the III Additional District and Sessions Judge, Ramanagara, in holding that the appeal was not maintainable in view of the evaluation made before the Trial court evaluating the plaintiffs' joint share at Rs.14,30,500/-.
26. There is no dispute by the appellant's counsel that if the value of the share of the plaintiffs, is less than Rs.10,00,000/-, then the District Court would get jurisdiction to deal with the appeal as the judgment and decree is passed by the Senior Civil Judge and JMFC, Channapatna. It is also not in dispute that if the value 25 of the subject matter of the suit exceeds Rs.10,00,000/-, the appeal is maintainable before the Single Bench of the High Court and upto the value of Rs.15,00,000/- and above the appeal has to be preferred before the Division Bench of the High Court.
27. The following guidelines though not exhaustive but are necessary to be formulated for the purpose of guidance to the trial Courts in evaluating the suit for the purpose of court fee and jurisdiction:
(1) Payment of Court fee fixing the jurisdiction of the Courts will depend on plaint averments alone.
Neither the averments in the written statement, nor the evidence nor the final decision have a bearing on the decision relating to court fee.
(2) The plaintiff in a suit being dominus litis has the choice of filing a suit of a particular nature or seek a 26 particular relief. Neither the defendant nor the court can alter or change the nature of the suit as one for a different relief as the suit is filed under different category and require the plaintiff to pay court fee on such altered category of suit, unless the plaintiff himself seeks for the same by way of an amendment.
(3) The trial Courts should always insist for separate evaluation of the subject matter of the suit for the purpose of court fee and jurisdiction. In order to avoid confusion in the jurisdiction of the appellate court, the value of the Court fee and jurisdiction in a partition suit are to be evaluated depending upon the facts and circumstances of each case. If the valuation slip is found to be incorrect or incomplete, the plaintiff shall be required to set it right before registration of the suit or within and specified time if the suit is already 27 registered. The trial court or appellate courts should take care in properly directing the office in this regard.
(4) If the plaintiffs claim their joint share without asking for individual separate share, then in such an event, the joint share of the plaintiffs becomes the subject matter of the suit and for appeal, then suit should be valued for the purpose of court fee and jurisdiction on the joint share of the plaintiffs, if the plaintiffs are more than one.
(5) If the plaintiffs are more than one, but they claim their individual and separate share to be declared, in such an eventuality, for the purpose of court fee, they have to pay the court fee on their individual share separately, but for the purpose of jurisdiction the largest share amongst the plaintiffs becomes the subject matter of the suit, therefore, in such an eventuality, single largest share of the plaintiff has to be taken into 28 consideration as subject matter of the suit for the purpose of jurisdiction of the court.
(6) Whether the suit is fully decreed as prayed for, partly decreed or partly dismissed or fully dismissed, it makes no difference so far as the subject matter of the suit is concerned and even for the purpose of appellate jurisdiction. The evaluation made by the plaintiff at the first instance before the trial Court shall be treated as the evaluation of the subject matter of the suit and Appeal for the purpose of court fee and jurisdiction.
(7) In a partition suit whether the relief prayed for in the appeal is different, the relief prayed for, for the first instance, for the purpose of appellate jurisdiction, the subject matter of the suit would be taken into consideration for the purpose of court fee and jurisdiction.
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(8) So far as counter claims are concerned, the counter claim shall not exceed the pecuniary jurisdiction of the court in which the plaint is presented. In a decree passed in a suit in which set off or counter claim is claimed can be subject to the same provision in respect of an appeal, which would have been subject to the condition that if no set off or counter claim had been claimed. Therefore, appeals from decrees relating to the set offs or counter claim shall lie to the court to which the appeal in respect of the subject matter of the plaint would lie.
(9) The amount or value of the subject matter of the original suit or proceeding of a civil nature, found in sub Section (1) of Section 19 of CPC relates to such amount or value of the subject matter meant for determining the pecuniary jurisdiction of the court and 30 not that meant for computing court fee payable thereon under the Court Fees Act.
(10) If the subject matter of the appeal is different from that of the subject matter of the suit, then the appellate court before entertaining the appeal has to hear and consider the said point as a preliminary point for the purpose of ascertaining its jurisdiction.
28. Though the above said guidelines are not exhaustive, but, they are to be borne in mind while dealing with the original and appellate jurisdiction of the courts.
29. In view of the above said elucidation of the factual matrix and legal position, the order passed by the III Additional District and Sessions Judge, Ramanagara, in returning the Memorandum of Appeal, is no way illegal and the same is proper and correct. 31
Under the above said circumstances, the Miscellaneous First Appeal is dismissed as devoid of merits.
Sd/-
JUDGE PL*