IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 2ND DAY OF JANUARY 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.48850 OF 2014 (GM-CPC) BETWEEN:
SMT. C. JANAKAMMA W/O Dr. C.L. NARAYANA AGED ABOUT 67 YEARS R/O NO.388, 12TH ‘C’ CROSS VYALIKAVAL, MALLESWARAM BANGALORE-560 003.
(By Mr. SHANMUKHAPPA, ADV.) AND:
1. Dr. C.L. NARAYANA S/O LATE CHANNA KRISHNAPPA AGED ABOUT 76 YEARS R/O No.21/3, 1ST MAIN ROAD SRIKANTESHWARA NAGAR MAHALAKSHMI LAYOUT BANGALORE.
2. M/S. BAYT HOSPITALITY PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT No.702, NILGIRI PLACE No.9, BARAKHAMBA ROAD NEW DELHI – 110 001 REPRESENTED BY ITS DIRECTOR Mr. PRITHU BHASIN.
… PETITIONER (By Mr. JWALA KUMAR, ADV., FOR R1 Mr. W.H. SUNDARA MURTHY, ADV., FOR … RESPONDENTS M/S. SUNDARA MURTHY SUNDARA MURTHY, ADV., FOR C/R) - - -
This Writ Petition is filed under Articles 226 & 227 of the Constitution of India, praying to call for the records which ultimately resulted in passing the impugned order dated 19-9-2014 passed by the learned city civil judge, Bangalore city in O.S.No.1831/2013 on I.A.No.04 vide Ann-A and etc.
This Writ Petition coming on for preliminary hearing in ‘B’ group this day, the Court made the following:-
ORDER The petition is admitted for hearing. With consent of the parties, the same is heard finally.
2. Heard Sri.Shanmukhappa, learned counsel for the petitioner on the question of admission.
3. In this petition under Article 227 of the Constitution of India, the petitioner has assailed the validity of the order dated 19.09.2014 passed by the Trial Court, by which application preferred by the respondent No.2 under Order VII Rule 11(b) of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’ for short), has been allowed and the petitioner has been directed to pay Court fee on the market value of the property.
3. Facts giving rise to the filing of the writ petition briefly stated are that the petitioner had filed civil suit namely O.S.No.1831/2013 in respect of the suit schedule property against the defendant No.1 seeking the relief of partition and separate possession. The respondent No.1 filed written statement in which inter alia it was pleaded that he was alienating the property in favour of respondent No.2. Thereupon the petitioner filed an application seeking impleadment of respondent No.2 which was allowed. On impleadment, the respondent No.2 filed an application under Order VII Rule 11(b) read with Section 151 of the Code seeking rejection of the plaint. The Trial Court, by an order dated 19.09.2014, has allowed the aforesaid application and has directed the petitioner to pay the Court fee on the market value of the property. In the aforesaid factual background, the petitioner has approached this Court.
4. Learned counsel for the petitioner submitted that the petitioner, even though may not be in possession of the property, yet she has right over the property. Therefore, the provisions of Section 35 of the Karnataka Court Fees and Suit Valuation Act, 1958 (hereinafter referred to as ‘the Act’ for short) will not apply to the fact situation of the case. It is further submitted that in order to ascertain whether the relief claimed in the suit has been properly valued or not, the averments made in the plaint alone has to be considered. In support of his submissions, learned counsel for the petitioner has placed reliance on the decisions of this Court in the cases of ‘GOPINATH A. vs. K.RAMALINGAM AND OTHERS’ 1989(1) Kant.L.J 170, ‘NINGAPPA KARABASAPPA SHIVANAGUTTI vs. AMRAPPA KARABASAPPA SHIVANAGUTTI AND OTHERS’ 1991(2) KLJ 373 and a decision of the Division Bench of this Court in the case of ‘B.S.MALLESHAPPA vs. KORATAGIGERE B. SHIVALINGAPPA AND OTHERS’ ILR 2001 KAR 3988.
5. On the other hand, learned counsel for the respondent No.2 has submitted that in the application for impleadment filed by the petitioner, it has been stated that respondent No.1 has alienated the property in favour of respondent No.2. It is further submitted that respondent No.2 has purchased the property for a valuable consideration and the petitioner is required to value the reliefs claimed in the plaint as per the market value as admittedly, the petitioner is not in possession of the suit property. In this connection, the attention of this Court has been invited to the averments made in paragraph 7 of the plaint. Learned counsel for the respondent No.1 has supported the submissions made by learned counsel for the respondent No.2 and has submitted that the property in question was allotted to him by the Bengaluru Development Authority to alienate the same in favour of respondent No.2.
6. I have considered the submissions made by the learned counsel for the parties and have perused the records. A Division Bench of this Court in the case of B.S.MALLESHAPPA supra, has held that the question of payment of Court fee has to be determined with reference to the averments made in the plaint alone and the Court cannot at the instance of defendant convert the suit as under Section 35(1) of the Act. In the light of the aforesaid enunciation of law by the Division Bench of this Court, the averments made in the plaint may be seen. The petitioner has claimed the following reliefs:
“(a) For partition and separate possession of the schedule property by allotting half share to the plaintiff and further directing the defendant to put the plaintiff in possession of her share in the schedule property;
(b) consequently, for a permanent injunction restraining the defendant, his men, his agents, his representatives, his legal heirs or any person or persons acting under or through him from alienating encumbering or creating any charge on the schedule property;
(c) costs of the suit and (d) grant such other relief or reliefs as this Hon’ble Court deems fit under the facts and circumstances of the case in the interest of justice and equity.”
Thus, the plaintiff has claimed the relief of separate possession of schedule property by alienating half share to the plaintiff in the suit property. In paragraph 7 of the plaint, the petitioner has made the following averments which reads as under:
“7. It is submitted that right from the beginning of marriage, the defendant was not in cordial terms with the plaintiff for the reasons best known to him. However, the plaintiff had lived with the defendant till 1992 and thereafterwards, the defendant directed the plaintiff to leave the matrimonial home as the defendant was day-in-and-day-out harassing the plaintiff in one way or the other and also not taking care of the daughter. Under the circumstances, the plaintiff in order to impart good education to her daughter, was compelled to leave the matrimonial home as per the desire of the defendant. Thus, from 1992 onwards, the plaintiff has been living separately. Even now the plaintiff alone is taking care of herself and the defendant has not bothered to look-after either the plaintiff or his daughter.”
7. Thus, on the basis of averment made in the plaint itself, it is evident that the petitioner is not in possession of the property in question and therefore, under Section 35 of the Act, the petitioner is required to value the relief as provided in the aforesaid Section. Therefore, the order passed by the Trial Court neither suffers from any error apparent on the face of the record nor any jurisdictional infirmity which warrants interference of this Court in exercise of powers under Article 227 of the Constitution of India.
8. Even otherwise it is well settled in law that the jurisdiction of this Court under Article 227 of the Constitution cannot be exercised to correct all errors of a judgment of a Court acting within its limitation. It can be exercised where the order is passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law and justice. [See: ‘JAI SINGH AND OTHERS VS. M.C.D. AND OTHERS’, (2010) 9 SCC 385, ‘SHALINI SHYAM SHETTY VS. RAJENDRA SHANKAR PATIL’, (2010) 8 SCC 329 and ‘RADHE SHYAM AND ANOTHER VS. CHABBI NATH AND OTHERS’, (2015) 5 SCC 423]. In the instant case the impugned order is not passed in violation of fundamental principles of law and justice warranting interference of this Court under Article 227 of the Constitution.
9. In view of the preceding analysis, I do not find any merit in the writ petition. The same fails and is dismissed.
Sd/- JUDGE RV