IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.5999 OF 2018 (GM-CPC) BETWEEN:
1. N. ASHWINI D/O A.NAGARAJA, AGED ABOUT 26 YEARS, R/AT NARASAPURA VILLAGE, "A" BLOCK, NARASAPPURA HOBLI, KOLAR TALUK-563 101 2. N. SHILPA D/O A. NAGARAJA AGED ABOUT 24 YEARS, R/AT NARASAPURA VILLAGE, "A" BLOCK, NARASAPPURA HOBLI, KOLAR TALUK-563 101.
(BY SRI. S. VISWESWARAIAH, ADVOCATE) AND:
1. SRI. A. NAGARAJA S/O LATE ANJANAPPA, AGED ABOUT 67 YEARS, R/AT NARASAPURA VILLAGE, "A" BLOCK, NARASAPPURA HOBLI, KOLAR TALUK-563 101.
2. SRI. KRISHNAPPA AGED ABOUT 36 YEARS, R/AT NARASAPURA VILLAGE "A" BLOCK, NARASAPPURA HOBLI, KOLAR TALUK-563 101.
... PETITIONERS ... RESPONDENTS (RESPONDENTS ARE SERVED AND UNREPRESENTED) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED BY THE HON'BLE SENIOR CIVIL JUDGE AND CJM, KOLAR IN O.S.NO.205/2016 DATED 08.12.2017 PASSED ON ISSUE NO.4, PRODUCED AT ANNEXURE-E BY ALLOWING THE WRIT PETITION.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER This writ petition by the plaintiffs in a suit for partition in O.S.No.205/2016 lays a challenge to the order dated 08.12.2017, a copy whereof is at Annexure – E, whereby the learned Principal Senior Civil Judge and CJM at Kolar having found the suit valuation defective has directed the petitioners to revalue the suit under Section 35(2) of the Karnataka Court Fee and Suits Valuation Act, 1958 and to pay deficit court fee. Despite service of notice, the respondents have chosen to remain unrepresented.
2. Having heard the learned counsel for the petitioners and having perused the petition papers, this Court grants indulgence in the matter because:
a) the suit is for a decree of partition and separate possession of the subject properties and therefore, Section 35(1) of the Act squarely applies for the purpose of valuation of such suit and payment of court fee; the Court below has wrongly invoked Section 35(2) of the Act merely because petitioners have sought for an incidental relief for separate possession;
b) the Court below has misconstrued prayer (c) in the plaint inasmuch as the petitioners have stated about joint possession of the property; there is misdirection in law attributable to the learned trial Judge who failed to differentiate between the concept of partition of Joint Hindu Family from that of division of property of the family; in the former there is disruption of joint status of the family whereas in the later there is division of property which is incidental to such disruption. Thus, there is error apparent on the face of the record as rightly pointed by the counsel for the petitioners, which warrants indulgence of writ Court.
In the above circumstances, this writ petition succeeds; the impugned order is set at naught and the valuation of the subject matter of the suit made by the petitioners is unassailable.
No costs.
Sd/- JUDGE UN