Karnataka High Court
Sri. Marirudraiah vs Smt. B. Channaveeramma on 13 March, 2023
Author: B M Shyam Prasad
Bench: B M Shyam Prasad
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WP No. 52915 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE B M SHYAM PRASAD
WRIT PETITION NO. 52915 OF 2015 (GM-CPC)
BETWEEN:
SRI. MARIRUDRAIAH,
SON OF LATE P. BASAPPA,
AGED ABOUT 45 YEARS,
RESIDING AT NO. 150, 1 MAIN,
DOORAVANINAGARA,
BENNIGANAHALLI POST, BANGALORE - 560016.
...PETITIONER
(BY SMT. PREETI KAREDDY, ADVOCATE FOR
SRI. S. Y. KUMBAR ., ADVOCATE)
AND:
Digitally signed 1. SMT. B. CHANNAVEERAMMA,
by NARASIMHA
MURTHY WIFE OF C. BASAVARAJU,
VANAMALA
Location: HIGH
DAUGHTER OF LATE P. BASAPPA,
COURT OF AGED ABOUT 43 YEARS,
KARNATAKA
RESIDING AT AGALGURKI VILLAGE,
NANDI HOBLI, CHIKKABALLAPURA - 562101,
KARNATAKA.
2. SRI. B. BANDEPPA,
SON OF LATE PUTTAPPA,
SINCE DEAD REPRESENTED
BY HIS LEGAL HEIRS;
2a. SMT. SIDDA GOWRAMMA,
W/O LATE B. BANDAPPA,
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WP No. 52915 of 2015
AGED ABOUT 35 YEARS.
2b. SRI. B. MANJUNATH,
S/O LATE B. BANDAPPA,
AGED ABOUT 35 YEARS.
3. SRI. B. SHIVAPRAKASH,
SON OF B. BANDAPPA,
AGED ABOUT 36 YEARS.
RESPONDENTS 2A, 2B AND 3
RESIDING AT NO. 128,
BENNIGANAHALLI, DOORAVANI NAGAR POST,
BANGALORE - 560016.
4. SMT. B. NAGARAJ,
SON OF LATE DODDA BASAPPA,
AGED ABOUT 44 YEARS.
RESIDING AT NO. 151,
BENNIGANAHALLI, DOORAVANINAGARA POST,
BANGALORE - 560016.
5. SMT. SAROJAMMA,
WIFE OF LATE CHIKKA BASAPPA,
AGED ABOUT 66 YEARS,
RESIDING AT NO. 152,
BENNIGANAHALLI, DOORAVANINAGARA POST,
BANGALORE - 560016.
6. SRI. MANJUNATH,
SON OF LATE CHIKKA BANDAPPA,
AGED ABOUT 36 YEARS,
RESIDING AT BENNIGANAHALLI,
DOORAVANINAGARA POST,
BANGALORE - 560016.
...RESPONDENTS
(BY SRI. T.S. TAZEEM AND M. NAGARAJA, ADVOCATES
FOR R.1;
VIDE ORDER DATED 04.03.2023 NOTICE TO R-2 AND R-
6 IS DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLE
227 OF THE CONSTITUTION OF INDIA PRAYING TO
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WP No. 52915 of 2015
QUASH THE IMPUGNED ORDER DATED 8.7.2015
PASSED ON I.A. FILED UNDER ORDER 26 RULE 9 OF
THE CIVIL PROCEEDURE CODE AND ON ISSUE NO.4 IN
O.S.NO.1171/2008 BY THE XXXVII ADDITIONAL CITY
CIVIL JUDGE, BANGALORE CITY, VIDE ANNXURE-H AS
ILLEGAL AND IRRATIONAL; AND FURTHER DIRECT THE
TRIAL COURT TO CONSIDER THE COURT FEE ISSUE
NO.4 AFRESH AND DECIDE IT FINALLY.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING IN "B" GROUP, THIS DAY, THE COURT MADE
THE FOLLOWING:
ORDER
This petition is by the fourth defendant in O.S.No.1171/2008 on the file of the XXXVII Addl. City Civil and Sessions Judge (CCH-38), Bengaluru (for short, 'the civil Court'). The petitioner has impugned the civil Court's order dated 08.07.2015, and the civil Court by this order has answered an additional Issue while deciding the merits of the petitioner's application [IA No.17] under Order XXVI Rule 9 of the Code of Civil Procedure 1908 [CPC].
2. The petitioner has filed this application for appointment of a Court Commissioner to inspect the subject property and file a report on the market value -4- WP No. 52915 of 2015 thereof. It is seen from the records that the petitioner was not originally arrayed as defendant but is later permitted to come on record. The petitioner on 14.06.2011, simultaneously with the written statement, has filed application [IA No.10] for framing additional Issue on the valuation of the suit, and the civil Court has rejected this application by the order dated 31.07.2012. The petitioner has called in question such order before this Court in W.P.No.27300/2012, which is disposed of on 03.04.2013 directing the civil Court to consider IA No.10 afresh and pass orders expeditiously.
3. Thereafter, the additional Issue on the valuation of the suit and sufficiency of Court fee is framed1. The petitioner has filed the application [IA No.17] under Order XXVI Rule 9 of CPC contending that oral evidence would not establish the status of 1 This issue reads as, "Does the plaintiffs prove that suit is properly valued and court fee paid on the plaint is sufficient".
-5-WP No. 52915 of 2015 the subject land and the appointment of Court Commissioner would be necessary. The petitioner's defense on the valuation and payment of Court fee is based on the specific assertion that the subject property, which is situated within the limits of BBMP, comprises of a number of residential and non- residential buildings. The civil Court, without an enquiry, has answered the Additional Issue opining that the subject property, as of the date of the suit, was an agricultural land, and though the petitioner contends that the subject property has lost its character of being an agricultural land, he has not placed any material on record except his own self- serving testimony. Of course, the civil Court has indeed observed that the decision on the additional Issue would be subject to its decision on merits.
4. Ms. Preethi Kareddy, the learned counsel for the petitioner, in view of the Full Bench decisions in Venkatesh R Desai v. Smt. Pushpa Hosmani -6- WP No. 52915 of 2015 and Others2 and Elfreeda Winnifred D'Souza v. Robin D'Souza and Others3, submits that the question of valuation and payment of proper Court fee must be considered finally as the question of valuation would not touch upon the jurisdiction of the civil Court to entertain the suit. Ms. Preethi Kareddy further submits that the petitioner must also be given liberty to lead evidence on the additional Issue based on the documents that are already produced, and with leave to produce further documents, if required, to substantiate that the subject property is within the BBMP limits, and therefore proper valuation would be based on the market value thereof.
5. These submissions by Ms. Preethi Kareddy must be accepted as the question whether the suit is properly valued and the Court fee is properly paid are the matters that will have to be 2 ILR 2018 Kar 5095 3 ILR 2022 KAR 529 -7- WP No. 52915 of 2015 examined as part of final adjudication as held in Venkatesh R Desai v. Smt. Pushpa Hosmani (supra) in the light of the decision of the Full Bench in Elfreeda Winnifred D'Souza v. Robin D'Souza and Others (supra). This Court must also opine that the application [IA No.17] filed under Order XXVI Rule 9 of CPC is rendered redundant with the turn of events with these decisions and the impugned order must yield. Therefore, the following ORDER The petition is allowed-in-part quashing the civil Court's order dated 08.07.2015 in O.S.No.1171/2008 and disposing of the petitioner's application as not surviving for consideration. The petitioner, as also the respondents, are reserved liberty to lead evidence on the additional Issue to vindicate their respective stands and calling upon the civil Court to decide such Issue in the light of the evidence that is brought on record and the decision of -8- WP No. 52915 of 2015 the Full Bench in Elfreeda Winnifred D'Souza v. Robin D'Souza and Others (supra) independent of its observation in the impugned order.
SD/-
JUDGE SA ct:sr