IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 27TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT WRIT PETITION No.28608 OF 2019 (GM-CPC) BETWEEN:
1. IQBAL AHAMAD S/O.LATE SHEIK AHAMAD SAB AGED ABOUT 64 YEARS MAIN ROAD, SORABA TOWN SHIVAMOGGA DISTRICT-577 429 2. SALEEMABEE W/O.LATE SHEIK AHAMAD SAB MAJOR DEAD BY L.RS.
3. MAZOOR AHAMED S/O.LATE SHEIK AHAMAD SAB AGED ABOUT 56 YEARS 4. BASHEER AHAMED S/O.LATE SHEIK AHAMAD SAB AGED ABOUT 54 YEARS 5. VAHEEDA BEGUM D/O.LATE SHEIK AHAMAD SAB AGED ABOUT 49 YEARS 6. SHAIRA BEGUM D/O.LATE SHEIK AHAMAD SAB AGED ABOUT 46 YEARS ALL ARE R/AT MAIN ROAD SORABA TOWN SHIVAMOGGA DISTRICT-577 429 P2 TO P6 ARE REPRESENTED BY THEIR GPA HOLDER IQBAL AHAMAD S/O.LATE SHEIK AHAMAD SAB AGED ABOUT 64 YEARS R/AT MAIN ROAD SORABA TOWN SHIVAMOGGA DISTRICT-577 429 … PETITIONERS (BY SRI B.PAPEGOWDA, ADVOCATE) AND:
1. NAZEER SAB S/O.LATE ABDUL KAREEM SAB AGED ABOUT 35 YEARS 2. SALA UDDIN S/O.IMAM SAB LINGANAMAKI SECRETARY KARGAL POST SAGAR TALUK 3. NAZEER AHAMMED S/O.HANNALI REHAMAN SAB AGED ABOUT 40 YEARS FISH MERCHANT MARKET ROAD, SORAB SHIVAMOGGA DISTRICT-577 429 4. AAMEENA BEE W/O.MAHABOOB ALI TUMKUR DISTRICT 4a. NANNESAB S/O.HASSAN SAB 5. TAILOR MURBARAK S/O.GUDUSAB AGED ABOUT 33 YEARS 6. ABDUL LATHEEF (DELETED AS PER ORDER ON IA.No.1) 7. RADHAMMA W/O.CHANDRA BHANDARI AGED ABOUT 49 YEARS 8. KAMALAMMA W/O.HALAPPA AGED ABOUT 60 YEARS 9. DOVOOL SAB S/O.GHOUSE SAB AGED ABOUT 45 YEARS 10. GANESH (ABATED) 11. MANJAPPA (ABATED) 12. GOWRAMMA W/O.NARAYANAPPA AGED ABOUT 56 YEARS 12a. KIRSHNA MURTHY S/O.NARAYANAPPA AGED ABOUT 30 YEARS 13. HAZARAMBEE (DELETED AS PER ORDER ON IA.NO.1) 14. GHOUSE SHARFEE SAB S/O.MOHAMMED SHAREF SAB AGED ABOUT 50 YEARS 15. KABBUT BANGARAPPA S/O.RAMAPPA AGED ABOUT 60 YEARS 16. BILKI HUSSAIN MIYA SAB (DELETED AS PER ORDER ON IA.NO.1) 17. VENKATA RAO (ABATED) 18. SYED HUSSAIN MOHAMMED SAB AGED ABOUT 30 YEARS 19. NADIHALLI GHOUSE SAB S/O.EMAM SAB AGED ABOUT 55 YEARS 20. BADE SAB S/O.ALI SAB AGED ABOUT 65 YEARS 20(a) SABJU SAB S/O.BADE SAB (DELETED AS PER ORDER ON IA.NO.22) 21. K.RAHMAN SAB S/O.ABDUL KHADAR SAB AGED ABOUT 45 YEARS MAIN ROAD, SORAB 22. EBRAHIM SAB S/O.MOHADDIN SAB AGED ABOUT 43 YEARS MAIN ROAD, SORAB (ABATED) 23. MAKBOOL SAB ALLABAKSH SAB AGED ABOUT 60 YEARS 24. GANAPATHIYAPPA AGED ABOUT 60 YEARS (ABATED) 25. UDUGANI SATTAR SAB S/O.HASSAM MIYA SAB AGED ABOUT 55 YEARS 26. CHANDRAPPA AGED ABOUT 40 YEARS 27. SHARADHAMMA AGED ABOUT 40 YEARS 28. THAMMANNAPPA S/O.SANNAPPA AGED ABOUT 45 YEARS 29. JOHARALI SAB S/O.AHAMED SAB AGED ABOUT 50 YEARS 30. RANGANATHAPPA S/O.DURGAPPA AGED ABOUT 60 YEARS 30(a) SREEDHAR S/O.RANGANATHAPPA AGED ABOUT 60 YEARS (AS PER ORDER ON IA.NO.17) 31. PAPER MADU AGED ABOUT 55 YEARS 32. MEEYA SAB S/O.HASSAN SAB AGED ABOUT 43 YEARS 33. DRIVER MAZEED SAB (ABATED) 34. HAMALI HAMMED S/O.NABBED SAB AGED ABOUT 28 YEARS 35. GUTHYAPPA S/O.MALLOR BENAVAPPA AGED ABOUT 50 YEARS 36. GUDU SAB S/O.HUSSAN SAB AGED ABOUT 40 YEARS 37. SATTAR SAB S/O.HUSSAN SAB AGED ABOUT 36 YEARS 38. GURAD RAVI S/O.T.S.GOPALAPPA AGED ABOUT 30 YEARS 39. GOPALAPPA S/O.NINGAPPA AGED ABOUT 50 YEARS MILITARY HOTEL MARKET ROAD SORAB DEAD BY LRS.
39(a) SHARADHAMMA W/O.T.GOPALAPPA AGED ABOUT 60 YEARS (AS PER IA.NO.25) 40. ANANTHAPPA S/O.NINGAPPA AGED ABOUT 45 YEARS 41. FRANSIS S/O.BURNEW AGED ABOUT 40 YEARS 42. ABDUL HAMMED S/O.ABDUL RASOOL AGED ABOUT 45 YEARS 43. MAHABOOB SAB S/O.EMAM SAB AGED ABOUT 32 YEARS 44. ESMAIL SAB S/O.HASSAN MIYA SAB AGED ABOUT 40YEARS 44(a) SYED JAMEER S/O.ESMAIL SAB AGED ABOUT 18 YEARS (AS PER IA.NO.83) 45. SYED ABBAS S/O.HASSAN MIYA SAB AGED ABOUT 40 YEARS 45(a) SYED BHASHU S/O.SYED ABBAS MAJOR (AS PER IA.NO.13) 46. TIRUVALLI HUSSAIN MIYA SAB S/O.HAYT SAB AGED ABOUT 60 YEARS 47. SALAH SABSHIKARIPUR S/O.SABJU SAB AGED ABOUT 30 YEARS 48. SALAHA UDUGANI S/O.SYED MOHAMMED SAB AGED ABOUT 30 YEARS 49. BURHAN UDUGANI S/O.SYED HUSSAIN MIYA SAB AGED ABOUT 31 YEARS 50. BHASHU UDUGANI S/O.SYED HUSSAIN MIYA SAB AGED ABOUT 31 YEARS 51. N.S.BALAKRISHNA S/O.NARAYANAPPA AGED ABOUT 40 YEARS 52. RAMAPPA MADIVALAR MAJOR 52(a) HASSAN SAB S/O.ANAY KHADER SAB AGED ABOUT 38 YEARS 53. LAKKAPPA MAJOR 54. PATTIGE ANGADI HANEEF SAB (ABATED) 55. MOHAMMED SAB S/O.GHOUSE KHAN AGED ABOUT 55 YEARS 56. MANJAMMA W/O.MADU RAO AGED ABOUT 40 YEARS 57. ABDUL RASHEED S/O.MADAR SAB AGED ABOUT 32 YEARS 58. MAHABOOB ALI S/O.CHAMAN SAB AGED ABOUT 34 YEARS 59. ABDUL HAMEED S/O.B.ZEHARUDDIN SAB AGED ABOUT 45 YEARS 60. AHAMED SAB (DELETED AS PER ORDER ON IA.NO.1) 61. GUDAVI AHAMED SAB S/O.PAKEER AHAMED SAB AGED ABOUT 45 YEARS 62. NAZEER S/O.EMAN SAB AGED ABOUT 40 YEARS 63. ABDUL KHADAR SAB S/O.EMAN SAB ATTAR AGED ABOUT 55 YEARS 64. HAMJA SAB S/O.SHABUDDIN SAB AGED ABOUT 48 YEARS 65. ALLAULLI SAB (DELETED AS PER ORDER ON IA.NO.1) 66. SYED GAFFOR (DELETED AS PER ORDER ON IA.NO.1) 67. T. MOHAMMED HAYATH S/O.THRUVALLI HUSSAN SAB AGED ABOUT 35 YEARS R/AT GENERAL MERCHANT NEW HOSPITAL AREA INDIRANAGAR, HARIHAR CHITRADURGA DISTRICT 68. N.ABDUL GHANI S/O.NANNE SAB AGED ABOUT 34 YEARS 69. R.DAVOOD S/O.ABDUL JABBAR SAB DEAD BY LR.
69(a) SAMSHUNISA W/O.R.DAVOOD AGED ABOUT 50 YEARS R/AT BRUHANIYA STORES TEMPLE ROAD HARIHAR CHITRADURGA DISTRICT (AS PER ORDER ON IA.NO.1) 70. RAZADK SAB S/O.AMEEN SAB AGED ABOUT 33 YEARS 71. DRIVER KHAN SAB S/O.ABDUL WHAB SAB AGED ABOUT 65 YEARS 72. BASHEER AHAMED 73. BABA SAB S/O.HAFI SAB AGED ABOUT 65 YEARS (I.A.III ADDITIONAL DEFENDANT) 74. SHAIK ABDUL KHADAR AGED ABOUT 35 YEARS 75. MUNEER AHMED S/O.JALEEL SAB AGED ABOUT 45 YEARS 76. CHINNAPPA S/O.HANUMANTHAPPA AGED ABOUT 40 YEARS 77. M.VEERABHASAIAH S/O.SHIVALINGAIAH AGED ABOUT 34 YEARS 78. MOHAMMED HAYAT S/O.SYED GHOUSE AGED ABOUT 35 YEARS (I.A.II ADDITIONAL DEFENDANT) 79. SHARIFFABEE W/O.BILKI HUSSAIN AGED ABOUT 45 YEARS 80. P.RAHAMATHULLA S/O.AHAMED SAB AGED ABOUT 28 YEARS C/O.AKBAR SAB MASZID ROAD 81. JAINABI W/O.ALLAVALLI SAB AGED ABOUT 55 YEARS (ABATED) 82. SHANAJ BEGUM W/O.SYED GAFFOR AGED ABOUT 28 YEARS 83. JUMANABI W/O.GHOUSE SHAREEF SAB AGED ABOUT 65 YEARS 84. HALAMMA W/O.RANGAPPA AGED ABOUT 65 YEARS MADIVALARAKERI, SORAB 85. ASHRAFFUNNISA S/O.MANSUR ALIKHAN FOREST SQUAD GUARD FOREST DEPARTMENT SAGAR DIVISION SAGAR-577 429 86. BASAVANYAPPA S/O.PUTTAMALLAPPA AGED ABOUT 55 YEARS 86(a) GURUNATHAPPA S/O.BASAVANYAPPA (AS PER ORDER ON IA.NO.27) (ABATED) 87. NAWAB SAB S/O.EMAM SAB AGED ABOUT 44 YEARS K.E.B., POST: KAVOOR MANGALORE-566 456 88. SHIVABASAPPA GOWDA S/O.VEERABASAPPA GOWDA AGED ABOUT 70 YEARS K.E.B., CHAGATUR VILLAGE POST: JADE SORAB TALUK-577 429 89. R.RAHAMATULLA S/O.ATTAVULLA SAB AGED ABOUT 42 YEARS NAMADEVA GALLI SORAB TOWN (AS PER ORDER ON IA.NO.26) 90. GOPALAPPA S/O.BANGARASHETTY AGED ABOUT 30 YEARS MARKET ROAD SORAB TOWN (AS PER ORDER ON IA.NO.20) 91. C.M.RAJAN S/O.KUNJI RAMAN AGED ABOUT 39 YEARS (AS PER ORDER ON IA.NO.18) 92. HAYAT SAB S/O.HUSSAIN SAB MAJOR (AS PER ORDER ON IA.NO.24) 93. BUDAN SAB S/O.ISOOF SAB AGED ABOUT 45 YEARS (AS PER ORDER ON IA.NO.15) 94. CHANDRASHEKARAIAH S/O.BASAIAH AGED ABOUT 47 YEARS (AS PER ORDER ON IA.NO.12) 95. GIRIJAMMA W/O.NAGARAJA AGED ABOUT 32 YEARS (AS PER ORDER ON IA.NO.16) 96. JHILABI W/O.DASTAGIR MAJOR C/O.SYED ISMAIL SAB (AS PER ORDER ON IA.NO.28) 97. ABDUL MAZEED S/O.NABI SAB AGED ABOUT 38 YEARS 98. SHASHIKALA W/O.SURESHA HINDU, MAJOR PROPER BELGAUM (AS PER ORDER ON IA.NO.30) 99. JABIULLA S/O.ALLAVALLI AGED ABOUT 27 YEARS SORAB TOWN (AS PER ORDER ON IA.NO.32) 100. SYED ALEEM SAB S/O.KHAGE SYED ADAM SAB AGED ABOUT 52 YEARS (AS PER ORDER ON IA.NO.32) 101. AHAMMED HUSSAIN S/O.MOHAMMED HUSSAIN AGED ABOUT 55 YEARS (AS PER ORDER ON IA.NO.37) 102. N.ABDUL AZEEM S/O.NANNE SAB AGED ABOUT 28 YEARS (AS PER ORDER ON IA.NO.39) 103. N.ABDUL GANI S/O.NANNE SAB AGED ABOUT 28 YEARS (AS PER ORDER ON IA.NO.39) 104. N.NOOR AHMED S/O.NANNE SAB AGED ABOUT 32 YEARS (AS PER ORDER ON IA.NO.40) 105. T.MAQBOOL S/O.T.YAASEEN SAB AGED ABOUT 34 YEARS (AS PER ORDER ON IA.NO.45) 106. U.S.SYED BURHOON S/O.SYED HUSSAIN SAB AGED ABOUT 46 YEARS (AS PER ORDER ON IA.NO.42) 107. U.S.BASHA S/O.ADAM SAB AGED ABOUT 46 YEARS (AS PER ORDER ON IA.NO.43) 108. T.MUSTAQ AHMED S/O.T.MOHAMMED HUSSAIN MIYA SAB AGED ABOUT 34 YEARS (AS PER ORDER ON IA.NO.44) 109. T.AZAMATTULLA S/O.T.MOHAMMED HUSSAIN MIYA SAB AGED ABOUT 34 YEARS (AS PER ORDER ON IA.NO.45) 110. BIBIJAN W/O.LATE MOHAMMED HUSSAIN SAB AGED ABOUT 48 YEARS (AS PER ORDER ON IA.NO.46) 111. T.ABDUL RASHEED S/O.T.HUSSAIN MIYA AGED ABOUT 44 YEARS (AS PER ORDER ON IA.NO.47) 112. MUBEENABHI W/O.ALLABAKSH SAB MAJOR (AS PER ORDER ON IA.NO.48) 113. MUNERABI W/O.LATE NAZEER AGED ABOUT 40 YEARS (AS PER ORDER ON IA.NO.49) 114. MOHAMMED IMTIYAZ S/O.MOHAMMED KHALEEL AGED ABOUT 44 YEARS (AS PER ORDER ON IA.NO.50) ALL ARE R/AT KASAMAVINAKOPPALU EXTENSION SORAB-577 429 … RESPONDENTS (BY SRI S.V.PRAKASH, ADVOCATE FOR C/R38; NOTICE TO R1 TO R17, R19 TO R37 & R39 TO R114 IS DISPENSED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 18.06.2016 (ANNEXURE-B) PASSED BY THE PRINCIPAL CIVIL JUDGE (SR.DN.) & JMFC, SORABA IN OS.NO.69/2007 ON IA.NO.83 FILED BY THE RESPONDENTS/DEFENDANTS AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioners being the plaintiffs in O.S.No.69/2007 are knocking at the doors of writ court seeking to lay a challenge to the order dated 18.06.2016 and the consequential order dated 23.11.2018, copies whereof are at Annexures-B & C (although in the prayer column Annexure-C is not mentioned), whereby the learned Senior Civil Judge & JMFC, Soraba having found the suit valuation defective and payment of court fee insufficient has directed the plaintiffs to submit fresh valuation and pay court fee accordingly within 29.06.2019. After service of notice, the respondents have entered caveat through their counsel and resist the writ petition.
2. Learned counsel for the petitioners also brings to the notice of this court that the suit itself is dismissed 20.07.2019 i.e., after the filing of the writ petition and therefore he submits that even this order needs to be set at naught. The learned counsel for the caveator vehemently opposes the writ petition and the prayer for restoration of the suit.
3. Having heard the learned counsel for the parties and having perused the petition papers, this Court grants relief to the petitioners for the following reasons:
a) an impugned order suffers from an error apparent on its face inasmuch as it overlooks the mandate of Section 7(1) of the KCFSV Act, 1958 that the plaintiffs have to pay the Court Fee as per the valuation of the subject matter of the suit as on the date the plaint was presented and not on the basis of subsequent rise of market value by operation of market forces, or otherwise;
b) for non compliance of the impugned orders, the suit itself could not have been dismissed on 20.07.2019 when the matter has been very much pending before this Court and although there was no stay; if such dismissal is not set at naught, enormous prejudice would be caused to the petitioners who have been fighting the suit since 1985 i.e., old O.S.No.9/1985; an argument to the contrary would militate against the sense of justice which the institution of judiciary has to preserve and maintain.
In the above circumstances, this writ petition succeeds; the impugned orders are set aside; there is no requirement of fresh valuation of subject matter of the suit; the other order dated 20.07.2019 whereby the suit was dismissed for default is also set at naught and thereby the suit is restored to the board for being tried in accordance with law.
No costs.
Sd/- JUDGE KTY