IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.38480/2013 (GM - CPC) BETWEEN:
D.R. Veerabhadrappa, S/o. late Rajashekharappa, Aged about 69 years, Resident of Aggunda Village, Kasaba Hobli, Arsikere Taluk, Hassan District – 573 160. …Petitioner (By Sri. A.V. Gangadharappa, Advocate) AND:
Smt. Sarvamangalamma, W/o. D.M. Rajashekharappa, Since dead by Legal Representative 1. Smt. Sulochana, W/o. C.M. Chandramouli, Aged about 60 years, Residing at Vidya Nagara, 3rd Stop, Near Anjaneya Temple, Davanagere – 577 001.
2. T.V. Somashekharappa, S/o. T.T. Veerappa, Aged about 64 years, Residing near MESCOM Office, B.H. Road, Biruru Town, Kadur Taluk, Chickmagalur District – 577 116.
3. Dinesh, S/o. S.R. Srikantappa, Aged about 35 years, Residing at Margadavara Camp, Biruru Town, Kadur Taluk, Chickmagalur District – 577 116.
4. Smt. B.R. Jayalakshmi, W/o. Raghavendra, Aged about 50 years, Residing in Achar Street, Biruru Town, Kadur Taluk, Chickmagalur District – 577 116.
B.R. Raghavendra Since dead by L.R., 5. B.R. Ananthapadmanabha, S/o. late B.R. Raghavendra, Aged about 30 years, Proprietor of Amrutha Electricals, Residing in Achar Street, Birur Town, Kadur Taluk, Chickmagalur District – 577 116.
6. Shivaji Rao, S/o. Govinda Rao, Aged about 76 years, Government Hospital Retired Compounder, Ballary Camp, Biruru Town, Kadur Taluk, Chickmagalur District – 577 116.
7. G.R. Shankara Rao, S/o. Jangadi Rudrappa, Aged about 64 years, Furniture Business, B.H.Road, Birur Town, Kadur Taluk, Chickmagalur District – 577 116. Since dead by Lrs., 7(a) Smt. Indumathi, W/o. late Shankara Rao, Aged about 65 years, 7(b) G.S. Manjunatha Rao, S/o. late Shankara Rao, Aged 37 years, 7(c) G.S. Ravindra, S/o. Shankara Rao, Aged about 37 years, All are residents of D.S. Rudrappa Extention (Halappa Extention), Birur Town, Kadur Taluk.
8. Smt. Vijayalakshmi, W/o. Shankara, Aged about 52 years, B.H. Road, Ballary Camp, Biruru Town, Kadur Taluk, Chickmagalur District – 577 116.
9. Smt. Neelambike, W/o. T.V. Somashekharappa, Aged about 70 years, Residing near MESCOM Office, B.H. Road, Biruru Town, Kadur Taluk, Chickmagalur District – 577 116. ...Respondents (By Sri. B.K. Manjunath, Advocate for R1; Smt. B.N. Manjula, Advocate for R3;
Sri. B.M. Siddappa, Advocate for R2 and R9;
Sri. S.N. Keshava Murthy, Advocate for R4 and R5; R6 and R7(a) served Vide order dated 27.02.2017 service of notice to R7(c) is held sufficient;
Vide order dated 17.07.2018 service to R7(b) is held sufficient and vide order dated 22.04.2019 service of notice to R8 is held sufficient) This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the order dated 13.08.2013 passed by the Court of the Senior Civil Judge at Kadur in O.S.No.19/2009 vide Annexure – G by holding that the valuation made by the petitioner vide Annexure – A is proper and correct and etc.
This Writ Petition coming on for Preliminary Hearing in ‘B’ Group this day, the Court made the following:
O R D E R The petitioner who is the plaintiff has assailed the order passed by the trial Court dated 13.08.2013 at Annexure – G, whereby the trial Court has recorded a finding in the negative on Issue No.5 while holding that the Court fee paid by the plaintiff on the relief claimed is insufficient. Further, the trial Court has directed the plaintiff to pay the Court fee on the actual market value of Item Nos. 4 to 6 of the suit schedule properties by producing a Valuation Certificate.
2. The learned counsel for the petitioner submits that evidence has not commenced and the determination of the question with respect to sufficiency of court fee has been treated as a preliminary issue and order is passed. Learned counsel for the petitioner draws attention of this Court to the decision in the case of VENKATESH R. DESAI Vs. SMT. PUSHPA HOSAMANI AND OTHERS reported in 2018 (2) Kar. L.J. 714 (FB) and submits that the issue regarding court fee insofar as it does not relate to the question of jurisdiction ought to have been tried along with other issues. It is further submitted that the valuation with respect to the relief in the prayer column at 10(e) is to be made in terms, by construing the relief as one under Section 24(d) of the Karnataka Court Fees and Suits Valuation Act. However, it is noticed that on the basis of the Valuation Slip already filed, the trial Court has recorded a finding. The judgment of this Court in the case of VENKATESH R. DESAI has clearly enumerated that it is not necessary that the Court treats the issue relating to court fee as preliminary issue, unless the said finding relates to the jurisdiction of the Court to try the suit.
3. In the present case, no such issue relating to jurisdiction has arisen. The only contention is as regards to the sufficiency and payment of court fee. Learned counsel for the petitioner also submits that the question with respect to valuation being essentially one between the court and the plaintiff, the defendants ought not to be permitted to put the proceedings on hold by insisting on finding as regards to sufficiency of court fee. It is also contended that the Valuation Slip that has been filed now may be required to be clarified and such clarification would be made if the matter is remanded. It is submitted that as it is an essentially a question of collection of court fee, petitioner would assist the trial Court if the matter is remitted and the matter is to be re-looked into.
4. In light of the judgment of the larger Bench, the trial Court ought to have assigned reasons as to why the question of court fee is being taken as preliminary issue. Though the judgment of this Court is a subsequent order, nevertheless, the Court has merely declared the law by taking note of the law laid down in the case of NANJAMMA Vs. AKKAYAMMA AND OTHERS reported in 2015(3) Kar. L.J. 357.
5. In the present case, looking into the Valuation Slip that has been filed, as submitted by the learned counsel for the petitioner, the Valuation Slip also does not appear to have been filed in accordance with the relief sought for. The relief with respect to the Sale Deeds as no binding prima-facie it does not appear to have been enumerated in a proper manner in the Valuation Slip.
6. The order of the trial Court is set aside.
Matter is remanded for fresh consideration. The trial Court to look into the aspect of valuation and record a determination on the issue of court fee while dealing with other issues.
In light of the submission of learned counsel for the petitioner, he is permitted to clarify the valuation already made by filing a fresh valuation slip. It is made clear that in light of the prayer sought, keeping in mind the object of payment of court fee, valuation being provided for the purpose of collection of revenue, liberty is granted to file fresh valuation slip and file a clarified valuation slip. The Government Pleader to be heard when determining the question of valuation.
Accordingly, the impugned order is set aside without expressing any opinion as regards to the merits of the contentions. In the light of the request and liberty granted to file fresh valuation slip and to clarify the existing valuation, matter would require to be reconsidered fresh. The trial Court to have re-look into the matter, subject to the observations made above while disposing off the other issues.
The parties to appear before the trial Court without awaiting any fresh notice, on 13.12.2019.
Sd/- JUDGE SV