IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8th DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.45872 OF 2018 (GM-CPC) BETWEEN:
1. Ayoob, Aged about 57 years.
2. Nawaz, Aged about 40 years.
3. Smt. Farzana, Aged about 39 years.
4. Smt. Puthu, Aged about 65 years.
5. Smt. Ruksana, Aged about 33 years.
6. Smt. Rubeena, Aged about 32 years.
Petitioners 1 to 6 are Children of late P.K.Abdul Rahman, Azizuddin Road, Bunder, Mangaluru-575 001. … Petitioners (By Sri.M.Vishwajith Rai, Advocate) AND:
1. Hafeez S/o. Late Hassan Bawa, Aged about 44 years, R/at Ishan Cottage, Birla Compound, Mukkacheri, Ullal Village and Post, Mangaluru-575 020.
2. Smt. Rehana, Aged about 48 years, 3. Smt.Shameena, Aged about 38 years, 4. Riyaz, Aged about 37 years, Respondents 2 to 4 are Children of late P.K.Abdul Rahman, Azizuddin Road, Bunder, Mangaluru-575 001. … Respondents (By Sri.M.Sudhakar Pai, Advocate for C/R1) - - -
This Writ Petition is filed under Article 227 of the Constitution of India praying to quash the order Annexure-A dated 9.7.2018 made in O.S.No.1200/2017 passed by the Court of the IV Additional Civil Judge and JMFC, Mangaluru, D.K.
This Writ Petition coming on for Preliminary Hearing this day, the Court made the following:-
ORDER Sri.M.Viswajith Rai, learned counsel for the petitioners and Sri.M.Sudhakar Pai, learned counsel for caveator-respondent No.1.
2. Heard the learned counsel for the petitioners on the question of admission.
3. Petition is admitted and heard finally with the consent of the learned counsel for the parties.
4. In this petition under Article 227 of the Constitution of India, the petitioners have assailed the validity of the order dated 9.7.2018 passed by the Trial Court, by which the issue with regard to valuation of the suit for the purpose of court fee and jurisdiction, which has been taken as preliminary issue, has been held by the Trial Court that the reliefs claimed in the suit has been properly valued.
5. Facts giving rise to the filing of this writ petition briefly stated are that the respondent No.1 herein filed the suit against the petitioners seeking the relief of possession. The claim in the suit was based on the ground that the plaintiff is the owner and is in possession of the suit property. The defendants’ father obtained the premises on a monthly rent. The plaintiff’s father had filed O.S.377/2000 against the father of defendants seeking possession of the tenanted premises and during the pendency of the suit, father of defendants expired. There upon, the defendants were brought as LRs and continued the suit. The plaintiff by mistake did not mention the property properly and in the execution proceedings, the said mistake came to the knowledge of the plaintiff. Therefore, the present suit seeking recovery of possession, by valuing the relief under Sections 41 and 42 of the Karnataka Court Fees and Suits Valuation Act (for short ‘the Act’), was filed.
The defendants on being served with the same filed the written statement in which the relationship of land lord and tenant was denied. The defendants also raised objection that claim has not been properly valued. Thereafter, the aforesaid issue with regard to the valuation of the reliefs for the purpose of payment of court fee was raised as a preliminary issue which has been answered in favour of the plaintiff. In the aforesaid factual background, this petition has been filed.
6. The learned counsel for the petitioner submitted that the Trial Court grossly erred in holding that the petitioner has admitted the relationship of landlord and tenant. It is further submitted that while passing the impugned order, the Trial Court has recorded the findings that the defendants were the tenants in respect of the premises in question and the aforesaid finding could have been made after recording evidence and while deciding the suit on merits. It is also submitted that the reliefs in the suit ought to have been valued under Section 29 of the Act and Sections 41 and 42 of the Act have no application to the fact situation of the case.
7. On the other hand, learned counsel for the respondent No.1 while placing reliance on the decision of the Supreme Court in the case of Ram Narain Prasad and Another Vs. Atul Chander Mitra and Others reported in (1994) 4 Supreme Court Cases 349 has submitted that Court fee has to be computed on the basis of the averment made and relief sought in the plaint and not on the basis of the written statement.
Learned counsel has also invited the attention of this Court to para 9 of the averments made in the plaint and submitted that the relief claimed in the suit has been properly valued. It is submitted that the defendant No.1 has not disclosed in the written statement as to in what capacity he is occupying the suit premises except for denying his status as a tenant. It is also submitted that the order of the Trial Court neither suffers from any error apparent on the face on record nor from any jurisdictional infirmity warranting interference by this Court.
8. I have considered the submission made by the learned counsel for the parties and the scope of interference in exercise of the powers under Article 227 of the Constitution of India. In the light of the aforesaid well settled legal principles in the aforesaid ruling of the Supreme Court and on perusal of paragraph 9 of the plaint, and the facts of the case as culled out in the plaint, it is apparent that the plaintiff has described the defendant as tenant and has valued the reliefs accordingly. In view of the law laid down by the Supreme Court Supra, the question of computation of Court fee has to be decided on the basis of the averments made in the plaint. Therefore, the Trial Court has rightly held that the relief claimed in the suit has been properly valued. However, it is clarified that the observations contained in the order dated 09.07.2018 that the defendant is a tenant in the premises of the suit scheduled property shall be taken to have been made only for the purposes of deciding the application for valuation of the reliefs claimed in the suit and shall have no bearing on the merits of the case. The Trial Court shall decide the aforesaid issue with regard to the relationship of landlord and tenant after the parties have adduced evidence.
With the aforesaid observation petition is disposed off.
Sd/- JUDGE rs