IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 01ST DAY OF AUGUST, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT C.R.P NO.594 OF 2018 C/W W.P.NOs.47861-47862 OF 2018 IN CRP NO.594/2018: BETWEEN:
A.T.HANUMANTHAPPA, S/O LATE THOPASHETTY, AGED ABOUT 65 YEARS, R/AT GURURAGHAVENDRA NILAYA, THYAGARA COLONY, SHANIVARA SANTHE, COORG DISTRICT-571 235.
... PETITIONER (BY SRI.D.R.RAVISHANKAR, ADV.,) AND:
1. M S MANJEGOWDA, S/O SUREGOWDA, AGED ABOUT 50 YEARS, R/AT DOOR NO.89, GREEN WOOD SCHOOL MAIN ROAD, KHB COLONY, HOLENARASIPURA, HASSAN DISTRICT-573 211.
2. A H MOHAN, S/O HONNEGOWDA, AGED ABOUT 40 YEARS, R/AT KARYALAYA BADAVANE, HOLENARASIPURA TOWN, HASSAN DISTRICT-573 211.
3. VASU, S/O LATE CHANNAIAH, AGED ABOUT 65 YEARS, R/AT NO.16, TEMPLE ROAD, JAYALAKSHMIPURAM, MYSURU-570 012.
4. AYUB KHAN, S/O IBRAHIM KHAN, AGED ABOUT 49 YEARS, R/AT NIJAM MOHALLA, 1ST DIVISION, HUNSUR TOWN, MYSURU DISTRICT-571 105.
5. GANAPATHI S L, S/O S L LAKKAIAH, AGED ABOUT 50 YEARS, R/AT SALAGOPPALU, ARAKALAGUDU TOWN, HASSAN DISTRICT-573102.
6. STATE OF KARNATAKA, SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, VIDHANA SOUDA, BENGALURU – 01.
(BY SRI.SURAJ NAIK, ADVOCATE FOR SRI.B.M.ARUN, ADVOCATE FOR R3;
... RESPONDENTS SRI.G.NARASI REDDY, AGA IMPLEADING RESPONDENT) THIS CRP IS FILED UNDER SEC.115 OF CPC., AGAINST THE ORDER DATED 14.09.2018 PASSED IN OS NO.97/2016 ON THE FILE OF THE PRL.SENIOR CIVIL JUDGE AND JMFC., HUNSUR, MYSURU, HOLDING THAT THE PETITIONER HEREIN HAS NOT PAID THE COURT FEE DESPITE AFFORDING SUFFICIENT OPPORTUNITIES AND REJECTING THE PLAINT ACTING UNDER ORDER 7 RULE 11[b] OF CPC.
IN W.P. NO. 47861-862/2018: BETWEEN:
A.T.HANUMANTHAPPA, S/O LATE THOPASHETTY, AGED ABOUT 65 YEARS, R/AT GURURAGHAVENDRA NILAYA, THYAGARA COLONY, SHANIVARA SANTHE, COORG DISTRICT-571 235.
(BY SRI.D.R.RAVISHANKAR, ADV.,) AND:
1. M S MANJEGOWDA, S/O SUREGOWDA, ... PETITIONER AGED ABOUT 50 YEARS, R/AT DOOR NO.89, GREEN WOOD SCHOOL MAIN ROAD, KHB COLONY, HOLENARASIPURA, HASSAN DISTRICT-573 211.
2. A H MOHAN, S/O HONNEGOWDA, AGED ABOUT 40 YEARS, R/AT KARYALAYA BADAVANE, HOLENARASIPURA TOWN, HASSAN DISTRICT-573 211.
3. VASU, S/O LATE CHANNAIAH, AGED ABOUT 65 YEARS, R/AT NO.16, TEMPLE ROAD, JAYALAKSHMIPURAM, MYSURU-570 012.
4. AYUB KHAN, S/O IBRAHIM KHAN, AGED ABOUT 49 YEARS, R/AT NIJAM MOHALLA, 1ST DIVISION, HUNSUR TOWN, MYSURU DISTRICT-571 105.
5. GANAPATHI S L, S/O S L LAKKAIAH, AGED ABOUT 50 YEARS, R/AT SALAGOPPALU, ARAKALAGUDU TOWN, HASSAN DISTRICT-573102.
6. STATE OF KARNATAKA, SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, VIDHANA SOUDA, BENGALURU – 01.
(BY SRI.SURAJ NAIK, ADVOCATE FOR SRI.B.M.ARUN, ADVOCATE FOR R3) ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTILCE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH ORDER VIDE ANNEXURE-D DATED 06.09.2018 PASSED BY THE LEARNED PRL. SENIOR CIVIL JUDGE AND JMFC, HUNSUR, MYSURU IN O.S.NO.97/2016.
THESE PETITIONS COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioner being the plaintiff in a specific performance suit in O.S.No.97/2016 in C.R.P.No.594/2018 has invoked the revisional jurisdiction of this Court u/s.115 of CPC, 1908 for assailing the order dated 06.09.2018 (wrongly stated by the petitioner as 14.09.2018), whereby he has been directed to pay deficit court fee on the sale consideration amount of Rs.15 crore, which allegedly is the value of subject matter of the suit.
2. Petitioner is also invoking the writ jurisdiction of this Court for assailing the order dated 06.09.2018, a copy whereof is at Annexure-D, whereby his plaint is rejected under Order VII Rule 11(b) of CPC, 1908 on the ground that despite affording sufficient opportunities he has failed to pay the deficit court fee in terms of the above order 06.09.2018.
3. Both the impugned orders have been passed by the learned Principal Civil Judge, Hunsur. The order dated 06.09.2018 is the principal order and the order dated 14.09.2018, whereby plaint is rejected is a consequential order. The respondents having entered appearance through their counsel resist both the writ petition and the civil revision petition, which are taken up for final hearing with the concurrence of the Bar.
4. Having heard the learned counsel for the parties and having perused the petition papers and also having adverted to the decision cited at the Bar, reprieve needs to be granted to the petitioner for the following reasons:
(i) the suit for specific performance is founded on the agreements dated 26.06.2012 and 20.09.2012; the respondents have discharged 60% of the contractual obligation and what remains to be executed is only the remainder which happens to be the subject matter of suit;
(ii) the decree for specific performance is sought for only in respect of the remainder of the agreements in question and therefore it is illogical to claim the court fee even in respect of that part of the agreements which has already been discharged and Sec.40(a) of Karnataka Courts Fees & Suits Valuation Act, 1958 does not admit such an interpretation;
(iii) the question raised in these petitions as to what should be the extent of suit valuation and thereupon what should be the amount of court fee is no longer res integra. A Co-ordinate Bench of this Court in the case of NAGARATHNA S.MURTHY vs. PADMA PRAKASH SHETTY, ILR 1996 KARNATAKA 841 has held at para 6 as under:
“Section 40(a) of the Karnataka Court Fees and Suits Valuation Act provides for Court fee in a suit for specific performance of Agreement of Sale. Sub- Clause (a) of Section 40 of the Court Fees Act which is relevant provides that in a suit for specific performance with or without relief of possession, Fee shall be payable ad-valorem computed on the amount of consideration. The question to be decided is as to whether when the plaintiff seeks only enforcement of part of Agreement of Sale is liable to pay Court Fee on the entire consideration amount mentioned in the Agreement. I do not think that the plaintiff is liable to pay Court fee on the entire sale consideration, if a part of the agreement has already been complied with as in this case. As stated in paragraph (10) of the plaint, two Sale Deeds are already executed in respect of the property Sy. No. 100/2 and 116/1 and the plaintiff wants only specific performance in respect of the remaining properties and assets mentioned in the Agreement of Sale. On reading Section 40, I am clearly of the view that the plaintiff need pay Court fee only on the amount of consideration in accordance with the Agreement of sale in respect of the property to which he claims specific performance of the Agreement of Sale. It is not necessary that he should, pay Court fee on the entire amount of consideration mentioned in the Agreement. Accordingly, I am of the view that though the total consideration mentioned in the agreement is Rs. 14 lakhs, plaintiff need not pay the Court fee on the consideration which is chargeable on Sy. No. 100/2 and Sy. No. 116/1 which have been already sold to him as stated in paragraph 10 of the plaint.”
In the above circumstances, the civil revision petition and the writ petition are favoured; both the impugned orders are set at naught; the suit having been restored, petitioner is not required to pay any court fee on such part of the agreements that has already been performed; the trial Court to process and proceed on that premises.
No costs.
Sd/- JUDGE DS