IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF APRIL, 2017 BEFORE THE HON’BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION No. 47427/2016 (GM-CPC) BETWEEN:
G. S. RUDRAPRASAD, S/O LATE SADASHIVAIAH, AGED ABOUT 53 YEARS, R/A RUDRABHISHEKA NILAYA, 2ND MAIN ROAD, VIDYANAGAR, CHITRADURGA TOWN-577 501.
(BY SRI VIRUPAKSHAIAH, ADVOCATE) AND:
1. G.S. BHASKAR SHIVACHARYA, S/O LATE SADASHIVAIAH, AGED ABOUT 39 YEARS, R/A K.G.T. COMPOUND, THYAGARAJANAGAR, CHALLAKERE-577 522.
2. G.S. CHANDRASHEKARAIAH, SINCE DEAD BY LR, ... PETITIONER 2(a) SHOWBHAGYAMMA W/O LATE G.S. CHANDRASHEKARAIAH, AGED ABOUT 55 YEARS, R/A NEAR AKSHAYA MILK BOOTH, THYAGARAJANAGAR, CHALLAKERE-577 522.
2(b). G.C. MAHANTHESHA, S/O LATE G.S. CHANDRASHEKARAIAH, AGED ABOUT 37 YEARS, R/A NEAR AKSHAYA MILK BOOTH, THYAGARAJANAGAR, CHALLAKERE-577 522.
2(c). POORNIMA W/O ASHOKA, AGED ABOUT 32 YEARS, R/A NEAR AKSHAYA MILK BOOTH, THYAGARAJANAGAR, CHALLAKERE-577 522.
3. BHAGIRATHAMMA, W/O LATE SADASHIVAIAH, AGED ABOIUT 80 YEARS, R/A RUDRABHISHEKA NILAYA, 2ND MAIN ROAD, VIDYANAGAR, CHITRADURGA TOWN-577 501.
4. G.S. SHANKARALINGAIAH S/O LATE SADASHIVAIAH, AGED ABOUT 46 YEARS, NEAR B.D.O OFFICE, CHITRADURGA ROAD, CHALLAKERE TOWN-577 522.
5. OMKARAMMA, W/O M.N. CHANDRASHEKARAIAH, AGED ABOUT 45 YEARS, R/A NEAR BDO OFFICE, KAILASA GAS AGENCY COMPLEX, CHALLAKERE TOWN-577 522.
6. PANCHARATHNA, W/O RUDRAMUNI, AGED ABOUT 43 YEARS, R/A NO.2676/A19, 11TH MAIN ROAD, 2ND CROSS, 2ND PHASE, RAJAJINAGAR, BANGALORE-560 010.
7. VINODHA, W/O NANJAIAH, AGED ABOUT 40 YEARS, R/A NO.645, VEERBHADRA NILAYA, J.P.NAGARA 9TH PHASE, 7TH BLOCK, NEAR H.M WORLD CITY APARTMENTS, BANGALORE-560 108.
8. CHANDRAMUKHI, W/O UMESHMURTHY, AGED ABOUT 38 YEARS, R/A NO.3429/B, IDIYAMMA COMPOUND, 6TH CROSS, GAYATRINAGAR, BANGALORE-560 021.
9. DEVIRAMMA, W/O UMESH, AGED ABOUT 28 YEARS, R/A NAYAKANAHATTI VILLAGE, CHALLAKERE TALUK-577 522.
10. SUNANDA, W/O H.C. THIPPESWAMY, AGED ABOUT 40 YEARS, R/A GANDHINAGAR, CHALLAKERE-577 522.
11. H.C. THIPPESWAMY, S/O H. CHANNABASAPPA, AGED ABOUT 53 YEARS, R/A GANDHINAGAR, CHALLAKERE-577 522.
12. M.C. TRIVENI W/O G.S. SHANKARALINGAIAH, AGED ABOUT 38 YEARS, R/A KAILASANILAYA, 1192, 1ST FLOOR, BEHIND BDO OFFICE, CHITRADURGA ROAD, CHALLKERE-577 522.
... RESPONDENTS (BY SRI UMESH MURTHY J. M., ADV, FOR C/R4; R5 –R12 NOTICE DISPENSED WITH;
R1, R2 (a), R3 SERVED AND UNREPRESENTED) ******* THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA WITH A PRAYER TO QUASH ORDER VIDE ANNEXURE-G DATED 22.08.2016 PASSED BY THE LEARNED SR. CIVIL JUDGE, CHALLAKERE IN I.A.52 IN O.S.20/2007 BY ALLOWING I.A.NO.52 FILED BY THE PETITIONER/ DEFENDANT NO.2 HEREIN.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Heard Sri Virupakshaiah.P.H. learned counsel appearing for the petitioner and Sri Umesh Murthy J.M., learned counsel appearing for the caveator respondent No.4.
2. I.A.No.52 filed by the petitioner/2nd defendant in O.S.No.20/2007 seeking additional issue being framed. Relating to Court fee has been turned down the Trial Court under the impugned order.
3. It is the contention of learned counsel for the petitioner that, since a specific plea had been raised in the additional written statement filed by 2nd defendant contending that court fee paid on the plaint is insufficient, particularly when the plaintiff has sought for declaration of two documents viz., gift deeds as null and void, court fee ought to have been paid separately and non framing of an issue with regard to court fee has resulted in great prejudice to the petitioner. Hence he prays for allowing the petition by setting aside the order impugned in this writ petitions.
4. Per contra, learned counsel appearing for the respondent would support the impugned order.
5. It is well settled law that the question of court fee must be considered in the light of averments made in the plaint and its decision cannot set influenced by the plea raised in the written statement. This view is supported by the judgment of the Apex Court in the case of Neelavathi and others vs. N.Natarajan and others reported in AIR 1980 SC 691.
6. Perusal of the records in question would disclose that plaintiffs have filed the suit in question for partition and separate possession and have valued the suit under Section 35(2) of the Karnataka Court Fee and Suits Valuation Act. By way of consequential relief, the documents said to have been executed by defendant have been sought to be declared as null and void and not binding on plaintiff. Hence, question of paying court fee on the plaint as though it is a suit for declaration does not arise. Hence, decision of the Court below does not call for interference. No grounds. Writ Petition is hereby rejected.
In view of rejection of the petition, I.A.No.1/2017 does not survive for considerations it stands rejected.
Ordered accordingly.
Sd/- JUDGE kcm