IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR WRIT PETITION No.45694 OF 2018 (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-560004.
(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-560085.
2. Sri. K.Adhinarayana, S/o. Late K.Sathyanarayanaiah, Aged about 48 years, No.20, 2nd Cross, Banashankari III Stage, Katriguppe Layout, Bengaluru-560085.
…Petitioner 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-560085.
4. Sri. K.M.Ravi, S/o. Sri. K.P.Mariyappa, Aged about 43 years, R/a No.748/A, 5th Main Road, Raghavendra Block, Srinagara, Bengaluru-560050.
…Respondents (By Sri. Vishnumurthy, Advocate for R1 to R3;
Sri. Mohan Kumar, Advocate for R2; R4 - served) This Writ Petition is filed under article 227 of the Constitution of India, praying to direct the XXIX Additional City Civil Judge, Bengaluru to frame additional issued in O.S.No.6184/2015 to cover whether the R-1 and 3 are in joint possession of the written statement schedule properties and whether the court fee paid defendant Nos.1 and 3 is sufficient and proper.
This Writ Petition coming on for orders, this day, the Court made the following :
ORDER The plaintiff is the petitioner in this writ petition. She has sought for a direction to the trial court for framing the additional issue with regard to court fee payable on the counter claim set up by the defendants 1 and 3. The trial court has framed issue no.8 in the following manner:
“Whether the plaintiff proves that defendants have not paid the proper court fee in respect of counter claim of the schedule property?”
2. The petitioner’s counsel submits that wrongly the burden is thrown on the petitioner to prove that the court fee paid is not sufficient. Counter claim is set up by the defendants 1 and 3. The burden should be on the defendants to show that they have paid the proper court fee. Therefore this issue is wrongly framed. The learned counsel for the respondents submits that the burden is on the plaintiff and therefore there is no need to interfere with the impugned order.
The trial court has thrown the burden on the plaintiff to show that the court fee paid by the defendants on the counter claim is not sufficient. Negative issue has been framed. It is for the defendant to show that they have valued the counter claim properly and in case the defendants place any evidence with regard to the court fee, the same may be rebutted by the plaintiff. I think that issue no.8 has been wrongly framed and therefore liberty is granted to the petitioner to make an application under Order 14 Rule 5 of CPC for re-framing issue no.8. If such application is filed, the trial court shall consider it. Writ petition is disposed of.
Sd/- JUDGE sd