Karnataka High Court
Devaraj S/O Siddappa Talawar vs Nizamuddin S/O Abdul Rehaman Hadli on 13 September, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC-D:13105
WP No. 104831 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 13TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE H.P.SANDESH
WRIT PETITION NO. 104831 OF 2024 (GM-CPC)
BETWEEN:
DEVARAJ S/O. SIDDAPPA TALAWAR
AGE ABOUT 32 YEARS,
OCC: AGRICULTURE AND STUDENT,
RESIDINT OF RAMNAL,
TQ: KALAGHATAGI, DIST: DHARWAD-581 204.
...PETITIONER
(BY SRI. RAJASHEKHAR B.HALLI, ADVOCATE)
AND:
1. NIZAMUDDIN S/O. ABDUL REHAMAN HADLI
AGE ABOUT 50 YEARS, OCC: AGRICULTURE,
RESIDENT OF #174, NAVA AYODHYA NAGAR,
2ND CROSS, BEHIND MOSQUE, OLD HUBBALLI,
DHARWAD-580024.
SAROJA
HANGARAKI 2. THE TAHASILDAR
KALAGHATAGI, TQ: KALAGHATAGI,
Location: HIGH
COURT OF
KARANTAKA
DIST: DHARWAD-581 204.
DHARWAD
BENCH ...RESPONDENTS
(BY SRI. A.P.MURARI, ADVOCATE FOR R1;
NOTICE TO R2 IS DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO, ISSUE
A WRIT IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT
OR ORDER DIRECTION, QUASHING THE IMPUGNED ORDER
PASSED BY THE SENIOR CIVIL JUDGE AND JMFC
KALAGHATAGI DATED 01-08-2024 ON IA NO.6 IN OS NO.
140/2022 SAME IS PRODUCED AT ANNEXURE-K IN THE
INTEREST OF JUSTICE AND EQUITY.
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NC: 2024:KHC-D:13105
WP No. 104831 of 2024
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH) Heard the learned counsel for the petitioner and learned counsel for the respondents.
2. Learned counsel for the petitioner has brought to notice of this Court that he has filed an application I.A No.6 filed under Section 11 of the Karnataka Court Fees and Suits Valuation Act R/w Section 151 of the Code of Civil Procedure, 1908 (hereinafter referred to as the 'KCF & SV Act' and 'CPC'), praying the Trial Court to direct the defendant No.1 to value the suit property (immovable property) covered under the Sale Deed and questioned the validity of the same in the counter claim and hence, the defendants have to pay the requisite Court fee on the subject matter of the Sale Deed, which the defendants have disputed. The Trial Court framed issues on 01.08.2024 and the application was also filed on the same day and the Trial Court comes to the conclusion, in view of -3- NC: 2024:KHC-D:13105 WP No. 104831 of 2024 the issues has been framed, the I.A No.6 filed under Section 11 of the 'KCF & SV Act' and 'CPC', does not survive for consideration.
3. The counsel contends that the very approach of the Trial Court is erroneous and ought not to have come to the conclusion that the application does not survive for consideration. The counsel would vehemently contend that when the respondent No.1 has questioned the Sale Deed which is in dispute and questioned Sale Deed is subject matter of the suit pending before the Trial Court. As per Section 11(2) and 38 of the KCF & SV Act, the respondent No.1 ought to have been paid the correct and proper Court fees on the said questioned instrument. But the respondent No.1 knowingly and mala fide intention to avoid the Court fees on the subject matter of the suit not paid the said Court fee. The Trial Court also fails to take note of the grounds which have been urged in the application and the very conclusion that the same does not -4- NC: 2024:KHC-D:13105 WP No. 104831 of 2024 survive for consideration is an erroneous order and this Court has to quash the said order.
4. The learned counsel appearing for the respondents also filed the statement of objections, wherein, it is contended that, in the written statement with counter claim contending that the claim of the petitioner that he is the absolute owner on the strength of the registered Sale Deed dated 22.03.2023 and the same is a false and fraudulent document and sought for dismissal of the said suit. In the said counter claim, the respondent No.1 claimed in his counter claim that the said registered Sale Deed dated 22.03.2023, is not binding on the respondent No.1 and consequential relief of permanent injunction. The suit was withdrawn under Order 21 Rule 1(3) R/w Section 151 of the CPC and accordingly the suit came to be dismissed. However, the counter claim was ordered to be heard by the Trial Court in accordance with law. Thereafter, on hearing the matter, the Trial Court has framed the issues. At this stage, the petitioner has filed an -5- NC: 2024:KHC-D:13105 WP No. 104831 of 2024 application I.A No.6 under Section 11 of the 'KCF & SV Act' and 'CPC' with a prayer to directing to pay the proper Court fee. The said application also came to be rejected by the Trial Court on the ground that the issues have already framed as such I.A No.6 does not stand for consideration, since the issues are framed. The copy of the issues framed is also very clear that issues are framed with regard to the said issue i.e., issue No.5. In view of framing of issue No.5, the relief sought by the petitioner under Section 11 of the 'KCF & SV Act', vide Annexure-J, does not survive for consideration. There is no error apparent on the face of the record in the impugned order dated 01.08.2024, the Trial Court in rejecting the same.
5. In reply to the arguments, the learned counsel for the petitioner relied upon the judgment of this Court passed in W.P No.104722/2022, dated 09.08.2024 and this Court also discussed in detail considering the judgment in the case of R.Rangaiah and another Vs. Thimma Setty and Others reported in 1963 (1) MLJ -6- NC: 2024:KHC-D:13105 WP No. 104831 of 2024 671 and the judgment of the Hon'ble Apex Court in the case of Satheedevi Vs. Prasanna and Another reported in (2010) 5 SCC 622 and also discussed with regard to Section 40 of the Kerala Court Fees and Suits Valuation Act, 1959, which is in para materia of the Section 38(1) of the Karnataka Stamp Act refers the valuation mentioned in the instrument but not the actual real market value. Having considered the judgment of Satheedevi case referred supra, if the suit is valued under Section 38 of the Act, the fee shall be computed on the value of the subject matter of the suit or instrument. When such being the case, when they are questioning and disputing the Sale Deed, they have to pay the Court fee on the same.
6. Having heard the learned counsel for the petitioner and also the learned counsel appearing for the respondents. Admittedly, the suit filed by the plaintiff is withdrawn, but there is a counter claim and hence, proceedings is continued and in the counter claim the defendants disputed the very document as a sham and -7- NC: 2024:KHC-D:13105 WP No. 104831 of 2024 bogus document. The counsel also contended that the same is not binding, having taken note of the prayer sought in the counter claim, when an application is filed and also issues have been framed by the Trial Court with regard to whether the Court fee paid by the defendant is proper or not and the same could be decided by the Trial Court by treating the said issue No.5 as a preliminary issue and decide the same before considering the matter on merits, whether Section 38 applies or any other proviso applies having considered the prayer sought in the counter claim along with the application, which has been filed by the petitioner for determining the issue of Court fee. With this observation, the writ petition is disposed off to consider the said issue as preliminary issue.
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(H.P.SANDESH) JUDGE PMP List No.: 1 Sl No.: 25