IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 16TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.46262 OF 2019 (GM-CPC) BETWEEN:
SMT. K.S.NAGARATHNA, D/O LATE SRI. K.SATHYANARAYANAIAH, AND W/O SRI. K.C.SAMPATH KUMAR, AGED 55 YEARS, RESIDING AT NO.14, RATHNA VILASA ROAD, BASAVANAGUDI, BENGALURU – 560 004.
... PETITIONER (BY SRI.H.S.PRASHANTH, ADVOCATE) AND:
1. SMT. K.RAJAMMA, D/O K.V.CHANDRASHEKARAIAH, AGED ABOUT 74 YEARS, NO.17B/116, BANASHANKARI III STAGE, RAMA RAO LAYOUT, KATRIGUPPE, BENGALURU – 560 085.
2. SRI. K.ADHINARAYANA, S/O LATE K.SATHYANARAYANAIAH, AGED ABOUT 48 YEARS, NO.20, 2ND CROSS, BANASHANKARI III STAGE, KATRIGUPPE, BENGALURU – 560 085.
3. SRI. K.SURENDRA BABU, S/O LATE K.SATHYANARAYANAIAH, AGED ABOUT 45 YEARS, NO.17B/116, BANASHANKARI III STAGE, RAMA RAO LAYOUT, KATRIGUPPE, BENGALURU – 560 085.
4. SRI. K.M.RAVI, S/O SRI.K.P.MARIYAPPA, AGED ABOUT 43 YEARS, R/AT NO.748/A, 5TH MAIN ROAD, RAGHAVENDRA BLOCK, SRINAGARA, BENGALURU – 560 050.
... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDER DATED 12.09.2019 PASSED BY THE 29TH ADDITIONAL CITY CIVIL JUDGE BENGALURU IN O.S.NO.6184/2015 VIDE ANNEXURE – A AND CONSEQUENTLY ALLOW THE APPLICATION I.A.NO.8 FILED BY THE PETITIONER AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER The petitioner being the plaintiff in a partition suit is invoking the writ jurisdiction of this Court for assailing the order dated 12.09.2019, whereby, the Court below has refused to treat the issue relating to suit valuation & court fee and as preliminary issue.
2. Having heard the learned counsel for the petitioner and having perused the Petition Papers, the impugned order is not liable to be faltered with in view of the decision of the full Bench itself in the case of VENKATESH R DESAI Vs. SMT. PUSHPA HOSMANI & OTHERS, ILR 2018 KAR 5095, para 35 which reads as under:
“35. Accordingly, and in view of the above, we are clearly of the view that by virtue of Section 11 of the Karnataka Court Fees and Suits Valuation Act, 1958 read with Order XIV Rule 2 of the Code of Civil Procedure, 1908, when an issue of valuation and/or court fees is raised in a civil suit on the objection of the defendant, the same is not invariably required to be tried as a preliminary issue and before taking evidence on other issues; but could be tried as a preliminary issue if it relates to the jurisdiction and the Trial Court is of the view that the suit or any part thereof could be disposed of on its determination. The reference stands answered accordingly.”
In the above circumstances, the Writ Petition is rejected in limine. However, all contentions of the parties are kept open.
The observation at para 4 of the impugned order that in a Joint Hindu Family governed by Mithakshara, there is a presumption of Joint possession may not be correct although, there is a presumption that every Hindu family is a Joint Hindu Family.
Sd/- JUDGE DS