Karnataka High Court
Mr. K. Govindaswamy vs Mrs. Munilakshmamma on 27 January, 2020
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF JANUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE SURAJ GOVINDARAJ
WRIT PETITION NO.47140 OF 2014 (GM-CPC)
BETWEEN:
Mr. K. Govindaswamy,
S/o M Kullappa,
Since dead by his LRs.,
1(a) Smt.Saroja,
Aged about 45 years,
Wife of late K.Govindaswamy,
(b) Sri.Ashok Kumar G.,
Aged about 27 years,
Son of late K.Govindaswamy,
(c) Sri.Vijay G.,
Aged about 20 years,
Son of late K.Govindaswamy,
All are residing at 41/3,
Doddaiah Road, Akkayyamma Layout
R.S.Palya,
Bangalore - 560 043.
... Petitioners
(By Sri.S.Muniraju, Advocate)
2
AND:
1. Mrs. Munilakshmamma,
W/o Narayanappa,
D/o Late Ramaiah,
Aged about 59 years,
2. Mr.Rajanna,
S/o late Ramaiah,
Aged about 57 years,
3. Mr.Krishnappa,
S/o late Ramaiah,
Aged about 55 years,
Respondents 1 to 3 are
R/at Rajanna Layout,
Hosa Layout Road, Horamavu Post,
Horamavu Agara,
Bengaluru - 560 043.
4. Mr. Ramanjini,
S/o Late Ramaiah,
Aged about 59 years,
R/at Kalkere Village,
K R Puram Hobli,
Bengaluru East Taluk,
Bengaluru - 560 043.
5. Mrs. Lakkamma,
W/o Patalappa,
Aged about 45 years,
Residing at T.Agrahara,
Near Rajana Kunte,
Chikkajala Hobli,
Bengaluru - 560 064.
6. Mrs. Saraswathamma,
W/o Murthy,
Aged about 43 years,
3
7. Mr. Gopala,
S/o late Ramaiah,
Aged about 39 years,
8. Mr. Patalappa,
S/o late Ramaiah,
Aged about 35 years,
Respondents 6 to 8 are
Residing at Kalkere Village,
K R Puram Hobli,
Bengaluru East Taluk,
Horamavu Post,
Bengaluru - 560 043.
9. Mrs. Vimala,
S/o late Ramaiah,
Aged about 31 years,
Residing at K Channasandra Village,
Horamavu Post,
Bengaluru - 560 043.
10. Mr. Suresh Babu,
S/o Late Abbaiah,
Major by age,
Residing at S.M.Homes,
4th Floor, Krishna Reddy Layout,
Banasawadi,
Bengaluru - 560 043.
11. Guruva Reddy @ Guru Reddy,
Father's name not known
To the Plaintiffs,
Major by age,
Residing at Maragondanahalli Village,
K R Puram Hobli,
Bengaluru East Taluk.
12. The Secretary,
Revenue Department,
4
Government of Karnataka,
Vidhana Soudha,
Bangalore - 560 001.
... Respondents
This Writ Petition is filed under Articles 226 and 227
of the Constitution of India, praying to set aside the orders
dated 11.09.2014, passed on I.A.No.6 filed by the R8 under
Section 11 of the Karnataka Court Fee and Suits Valuation
Act read with Section 151 of the CPC., directing the
petitioner to calculate and pay the Court fee on the market
value in O.S.No.3333/12, by the V Addl. City Civil Judge, as
per Annexure - A.
This Writ Petition coming on for Preliminary Hearing
in 'B' Group, this day, the Court made the following:
ORDER
The petitioner claims to have purchased plot bearing No.2, Banjara Orchards V, House list khata No.344/11 in Sy.No.537 of Kalkere village, K.R.Puram Hobli, Bangalore East Taluk, under registered sale deed dated 07.03.2004. He claims to be in possession and enjoyment of the said property. On an interference by respondent No.1 to 9 with regard to possession and threat held out to demolish the compound wall 5 constructed by the petitioners/plaintiffs, he filed O.S.No.3333/2012.
2. The petitioners/plaintiffs came to know that one Ramaiah has executed a gift deed on 16.11.2010 in favour of defendant No.8 and also that defendant Nos.5, 6 and 9 and their mother Gowramma has executed a release deed in favour of defendant No.8. The petitioners/plaintiffs had sought for a declaration to declare the gift deed and release deed as not binding on the petitioners/plaintiffs, besides, the petitioner has also sought for a relief of injunction restraining the defendants from interfering with the possession of the petitioner, as also restraining the defendants therein from creating any charge or encumbrance on the property of the petitioner.
3. Defendant No.8 has entered appearance and filed written statement as also application under Section 11 of the Karnataka Court Fees and Suit Valuation Act, 1958 (hereinafter referred to as 'Act' for brevity) read 6 with Section 151 of Code of Civil Procedure, 1908 contending that since the petitioner/plaintiff had sought for relief of declaration in respect of registered gift deed and release deed, the same amounts to cancellation of those documents and as such, the petitioner/plaintiff ought to have valued the suit in terms of the Section 38 of the Act and made payment of the necessary court fees on the market value thereof. This application was objected to by the petitioners/plaintiffs on the ground that the gift deed and release deed had been executed subsequent to the sale deed in favour of the petitioner/plaintiff since the sale deed was executed in the year 2004 whereas the gift deed in the year 2010 and the release deed in the year 2012. It was contended that as on the date of the sale in favour of the petitioners/plaintiffs, defendant No.8 did not have substantive right, title or interest over the property. The documents have been created subsequent to the interest and in favour of petitioner/plaintiff. There is no 7 need to value the suit in terms of Section 38 of the Act. The petitioner/plaintiff contended that the suit has been properly valued.
4. On the basis of the said contention, the Trial Court after hearing the parties was of the opinion that unless and until the gift deed and release deed are cancelled, the relief of declaration to title in favour of the petitioner/plaintiff, as also of the relief of injunction cannot be granted. The Trial Court therefore, directed its office to calculate the court fee payable by the plaintiff/petitioner on the market value of the suit schedule property as per the value fixed by the Government.
5. Aggrieved by the said order, the petitioner/plaintiff is before this Court assailing the said order dated 11.09.2014 passed by the Trial Court in O.S.No.3333/2012.
8
6. Respondent No.8 being the only contesting party, notice in respect of respondent Nos.1 to 7 and respondent Nos.9 to 11 was dispensed with. Respondent No.8 had entered caveat and continued to prosecute the matter.
7. During the pendency of the writ petition, the State was impleaded as respondent No.12 and the learned HCGP has entered appearance. Today, Sri. N. Balaji, AGA has appeared and undertakes to take notice for respondent No.12. He is permitted to enter appearance for respondent No.12 and file his memo of appearance.
8. Today, when the matter is taken up for hearing, none appears for respondent No.8. The petitioner has addressed his arguments contending that even if the Trial Court had held that the valuation ought to have made in terms of Section 38 of the Act, the petitioner is unable to do so since both the gift deed and 9 release deed have no value. Learned counsel for the petitioner therefore contends that in such an event and in such circumstances, the only option left for the petitioner/plaintiff was to value the suit in terms of Section 24(d) of the Act since no valuation was capable of being made under Section 38 of the Act. In support thereof, the learned counsel for the petitioner relies upon the decision rendered by this Court in Jaware Gowda and Anr. v. Basavaraju N.J and Ors. reported in AIR 2016 KARNATAKA 58, more particularly para Nos. 17, 20, 21 and 22 thereof, which are reproduced hereunder for ready reference.
"17. It is well settled proposition of law that the Court cannot add words to a statute or read words which are not therein. Even if there is a defect or omission in the statute, the Court cannot correct the defect or supply the omission. Therefore, Section 38 of the Act when it uses the words 'value of the subject-matter of the suit' it is the subject-
matter of the instrument i.e., the consideration mentioned in the instrument which is to be taken into consideration while valuing the suit for the purpose of the Court 10 fee under Section 38 of the Act and not the market value of the property.
20. Now in the instant case, even if it is to be held for the purpose of Section 38 of the Act, though the value is mentioned in the instrument, if it is a market value, the Court fee is payable under Section 7(2) on the basis of the revenue paid in respect of the said provision reads as under:
"Section 24. Suits for declaration: In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under Section 25
(a) to (c) xxxxxxxxxxxxx
(d) "in other cases", whether the subject-
matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on rupees one thousand whichever is higher."
The opening words are "in other cases"
means, if the case do not fall under any of the provisions of the Act then whether the subject-matter of the suit is capable of valuation or not, fee shall be paid on the amount at which the relief sought is valued in the plaint or on rupees one thousand whichever is higher. Therefore, when the relief sought for in the plaint does not fall under any of the provisions of the Act, liberty is granted to the plaintiffs to give their own valuation and pay the Court fee on the said 11 amount or on rupees one thousand, whichever is higher.
21. as set out above, though the suit is styled as a 'declaration', Section 24(a) and (b) of the Act is not attracted. In substance, the relief sought being cancellation, it is Section 38 which is attracted but since no value is mentioned in the instrument, it cannot be valued under Section 38 of the Act. Therefore, Section 24(d) of the Act is attracted. Therefore, the plaintiff in the absence of the value of the subject-matter being mentioned in the instrument and as the case does not fall under Section 24(a) and (d), they have no obligation to value the suit on the basis of the market value. The plaintiffs have rightly valued the suit under Section 24(d) of the Act and have given their valuation as rupees one thousand. In the facts and circumstances of this case, the said valuation cannot be found fault with.
22. The trial Court has not properly appreciated the facts of this case. Probably it was misled by the aforesaid judgments of this Court which is now held to be not a good law by the Apex Court. In that view of the matter, the impugned order cannot be sustained. Hence, I pass the following:
ORDER
a) Writ Petition is allowed;
b) The impugned order passed the trial Couret is hereby set aside and I.A.No.7 12 filed by defendant No.1 under Section 11(2) of the Act is dismissed;
c) The valuation made by the plaintiffs is correct.
9. On perusal of the above decision, it is clear that normally when the cancellation of documents is sought for, the same is valued under Section 38 of the Act. However, there are exceptions. When there is no value mentioned in the documents sought to be cancelled, the plaintiff would be at liberty to value the suit under Section 24(d) of the Act.
10. This decision as also the argument was not brought to the notice of the Trial Court while the application as regards which the interlocutory order has been passed, was being considered by the Trial Court. The argument now being advanced is a new argument which was never addressed before the Trial Court. In view thereof, the order dated 11.09.2014 passed in O.S.No.3333/2012 by the V Additional City Civil Judge 13 (CCH-13), Bengaluru is set aside. The matter is remanded to the trial Court for consideration of the application under Section 11 of the Act in the light of the judgment of this Court in JAWAREGOWDA'S case, cited supra.
11. Both the parties shall appear before the Court and address arguments on the said application at the convenience of the Court.
Accordingly, the writ petition is partly allowed.
Sd/-
JUDGE SSD