IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 7TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 31567 OF 2018 (GM-CPC) BETWEEN:
1. SMT. R. RAJESHWARI W/O LATE SRI R SURESH AGED ABOUT 48 YEARS, 2. KUM. MADHUSHREE S D/O LATE SRI R SURESH AGED ABOUT 25 YEARS BOTH ARE R/AT NO. 123, 3RD CROSS, 2ND STAGE, MARUTHI TEMPLE ROAD, GANGOTHRI LAYOUT MYSORE - 570 009 ... PETITIONERS (BY SRI. G S VENKAT SUBBA RAO, ADVOCATE) AND:
1. SRI. B VIJAY KUMAR JAIN S/O B M JAIN, AGED ABOUT 57 YEARS, 2. SRI B UMED RAJ JAIN S/O B M JAIN, AGED ABOUT 50 YEARS, 3. SMT. LEELA V JAIN W/O B VIJAY KUMAR JAIN, AGED ABOUT 57 YEARS, 4. SMT. RATHNA U JAIN W/O B VIJAY KUMAR JAIN, AGED ABOUT 47 YEARS, 1TO 4 ARE C/O JAIN RANKA & CO., NO.4, 2ND CROSS, SOJI STREET MYSORE - 570 001.
5. SRI WAJID PASHA TUFFWUD GOLD, MAJOR, LIFE LINKS PLYWOOD GLASS HARDWARE #4, THE ROYAL CROWN BUILDING ASHOKA ROAD CORNER OPP BIG CLOCK TOWER MYSORE - 570 001.
6. SRI M SURESH GLASS HOUSE PROPRIETOR OM PRAKASH MAJOR #2, THE ROYAL CROWN BUILDING ASHOKA ROAD CORNER OPP BIG CLOCK TOWER MYSORE - 570 001.
7. SRI RAKESH HARDWARE PROP: KAMLESH BAROLA, MAJOR #3, THE ROYAL CROWN BUILDING ASHOKA ROAD CORNER OPP BIG CLOCK TOWER MYSORE - 570 001.
8. SRI VASIULLA ANSARI MAJOR, AICON SUMBERSIBLE PUMPS COIMBATORE MOTOR & SPARES #1, THE ROYAL CROWN BUILDING ASHOKA ROAD CRONER OPP BIG CLOCK TOWER MYSORE - 570 001.
9. THE MANAGER BATA SHOE STORE THE ROYAL CROWN BUILDING ASHOKA ROAD CORNER OPP BIG CLOCK TOWER MYSORE - 570 001.
10 . SRI B S S RAO, MAJOR, CHIEF MANAGER, BANK OF INDIA, MAIN BRANCH, MYSORE #10-14, THE ROYAL CROWN BUILDING ASHOKA ROAD CORNER OPP BIG CLOCK TOWER MYSORE - 570 001.
11 . VASANTHI ANAND MANAGER CANARA BANK ASHOKA ROAD BRANCH THE ROYAL CROWN BUILDING OPP BIG CLOCK TOWER MYSORE - 570 001.
12 . CHANDRAKALA MAJOR, MANAGER MICRO FINANCE BRANCH THE ROYAL CROWN BUILDING ASHOKA ROAD BRANCH OPP BIG CLOCK TOWER MYSORE - 570 001.
13 . ANAND, MAJOR, CHINA BAZAR IN CELLAR THE ROYAL CROWN BUILDING ASHOKA ROAD BRANCH OPP BIG CLOCK TOWER MYSORE - 570 001.
... RESPONDENTS (BY SRI. C R GOULAY, ADVOCATE FOR R1 TO 4; VIDE ORDER 24.07.2018, NOTICE TO R5 TO 13 DISPENSED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER DATED 12.01.2018 PASSED ON I.A.NO.8 UNDER SECTION 10 AND 11 OF THE KARNATAKA COURT FEES AND SUIT VALUATION ACT IN O.S.NO. 264/2015 BY THE II ADDL. CIVIL JDUGE (SR.DN) & CJM AT MYSURU VIDE ANNEXURE-A.
THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Petitioners being the plaintiffs in an ejectment suit in O.S.No.264/2015 are knocking at the doors of Writ Court assailing the order dated 12.01.2018, a copy whereof is at Annexure-A, whereby the learned 2nd Addl. Civil Judge, Sr. Division, Mysore having favoured respondents application in I.A. No.8 filed under Secs. 10 & 11 of Karnataka Court Fees and Suits Valuation Act, 1958 has directed the petitioner to effect fresh valuation of the superstructure existed on the suit schedule property and to pay court fee on its market value. After service of notice, respondent-defendants having entered appearance through their counsel resist the writ petition.
2. Having heard the learned counsel for the parties and having perused the petition papers, this Court is of the considered opinion that the impugned order is prima facie unsustainable since it violates the law declared by the Full Bench of this Court in the case of VENKATESH R.DESAI VS. SMT. PUSHPA HOSAMANI, ILR 2018 KAR 5095 wherein Para 35 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.”
The impugned order is contrary to the observations mentioned above, especially when the disputed facts were involved and the issue treated by the Court in the impugned order involves mixed questions of law & facts which warrant a full-fledged trial.
In the above circumstances, this writ petition succeeds in part; the impugned order is set at naught; the issue as to suit valuation and court fee shall be treated as one of the issues along with the rest, after the trial of the suit. All contentions of the parties are kept open.
No costs.
Sd/- JUDGE Snb/