IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE N.S. SANJAY GOWDA WRIT PETITION NO. 41446/2014 (GM-CPC) BETWEEN:
1 . SMT.REVAMMA, W/O LATE K KEMPAIAH, AGED ABOUT 50 YEARS, 2 . SRI UMESH, S/O LATE K KEMPAIAH, AGED ABOUT 33 YEARS, 3 . SMT MANJULA, D/O LATE K KEMPAIAH, AGED ABOUT 32 YEARS, 4 . SMT KALAVATI, D/O LATE K KEMPAIAH, AGED ABOUT 31 YEARS, 5 . SRI RAGHU, S/O LATE K KEMPAIAH, AGED ABOUT 30 YEARS, ALL ARE R/A NO.206, 2nd FLOOR, ARSHA RUTHU RASTE, NEAR DASAPPA KALYAN MANTAPA, K G NAGAR, BANGALORE-560 019. ...PETITIONERS (BY SRI S.G HEGDE ADV., ) AND:
1 . SRI.K.SINGARI S/O LATE KEMPAIAH, AGED ABOUT 63 YEARS, R/AT NO.20, 2ND CROSS, ESHWARI SCHOOL ROAD, HOSAKERI HALLI, BANGALORE 560 085.
2 . SMT. KEMPAMMA W/O THIMMEGOUDA, AGED 61 YEARS, NO.14132, 2ND CROSS, 1ST MAIN, GUMMAYA BLOCK, HANUMAGIRI EXTENSION, PADMANABHA NAGAR, BANGALORE-560 070.
3 . SMT LAKSHMAMMA, W/O JOGHI GOWDA, AGED ABOUT 51 YEARS, NO.336/17, 3RD MAIN ROAD, HOYSALA VISHNUVARDHANA ROAD, LAKSHMIPURAM, K G NAGAR, BANGALORE-560 019. …RESPONDENTS (BY SRI R.G HEGDE, ADV.) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE ORDER DATED 2.6.2014 PASSED IN OS.NO.986/11, ON THE FILE OF CITY CIVIL JUDGE AT BANGALORE, AT ANN-E.
THIS WRIT PETITION IS COMING ON FOR PRELIMINARY HEARING IN B GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Plaintiffs filed a suit for partition contending that they were in joint possession with the defendants and valued their suit as per Section 35(2) of the Karnataka Court Fees and Suits Valuation Act (for short, referred to as ‘the Act’). Defendant No.1 disputed the correctness of valuation and raised a contention that court fee was required to be paid as per Section 35(1) of the Act.
2. It was the case of the defendants that the plaintiffs have set up the plea of earlier division of properties by way of a palupatti and therefore, it was an implied admission that they were not in joint possession. Plaintiffs have in fact categorically stated at paragraph 21 as follows:
“The plaintiffs and defendants are in joint possession of the property and therefore the property bearing No.96, site No.106 in Sy.No.1 to 72 (Sunkenahalli Extension), continues to be joint family property”
Thus, it was the specific plea of the plaintiffs that they were in joint possession of the properties and the suit properties continued to be joint family properties.
3. The Trial Court, by the impugned order, has held that since the plaintiffs pleaded that there was a prior division by way of a palu patti, they were not in joint possession and they were liable to pay the Court fee as per Section 35(1) of the Act.
4. A Division Bench of this Court in the case of B.S.MALLESHAPPA Vs. KORATAGIGERE B.SHIVALINGAPPA AND OTHERS - ILR 2001 KAR 3988 has held as follows at paragraph 11:
“11. We may now conveniently summarise the principles relating to Court fee in regard to suits for partitions and appeals therefrom:
i) Payment of Court fee will depend on plaint averment alone. Neither the averments in the written statement, nor the evidence nor the final decision have a bearing on the decision relating to Court fee.
ii) The scope of investigation under Section 11 is confined practically to determine two points:
(i) Under valuation of the subject matter of the suit and (ii) category under which the suit falls, for the purpose of Court fee. Once the category of suit is determined with reference to plaint averments, the Court cannot subsequently change the category on the basis of the averments in the written statement or on the basis of evidence and arguments. In short, if the suit is found to fall under Section 35(2) of the Act on the plaint averments, the Court has no power to convert the suit as one falling under Section 35(1) of the Act, at an point of time, much less while rendering judgment. The only exception is when the plaint is amended.
iii) The plaintiff in a suit being dominus litis has the choice of filing a suit of a particular nature or seek a particular relief. Neither the defendant nor the Court can alter the suit as one for a different relief or as a suit falling in a different category and require the plaintiff to pay Court fee on such altered category of suit.
iv) If the plaintiff claims that he is in joint possession of a property and seeks partition and separate possession, he categorises the suit under Section 35(2) of the Act. He is therefore liable to pay Court fee only under Section 35(2). If on evidence, it is found that he was not in joint possession, the consequence is that the relief may be refused in regard to such property or the suit may be dismissed. But the question of Court treating the suit as one falling under Section 35(1) of the Act and directing the plaintiff to pay the Court fee under Section 35(1) of the Act does not arise. Even after written statement and evidence, (which may demonstrate absence of possession or joint possession) if the plaintiff chooses not to amend the plaint to bring the suit under Section 35(1) and pay Court fee applicable thereto, he takes the chance of suit getting dismissed or relief being denied.
v) On appreciation of evidence, if the Court disbelieves the claim of plaintiff regarding joint possession, it can only hold that the case does not fall under Section 35(2) and therefore plaintiff is not entitled to relief. It cannot, in the judgment, hold that the case of plaintiff should be categorized under Section 35(1) nor direct the plaintiff to pay Court fee on market value under Section 35(1) of the Act.
vi) The Court fee payable on an appeal is the same as the court fee payable on the suit. Therefore even if the trial court holds that plaintiff was not in joint possession or that plaintiff and been excluded from possession, there will be no change in the Court fee payable in an appeal by the plaintiff against such decision. The Curt fee on the appeal will still be the same as the Court fee paid on the plaint in the Court of first instance.’’ 5. In view of the decision of the Division Bench of this Court referred to supra, it is clear that plaintiff in a suit being dominus litis has the choice of filing a suit of a particular nature or seek a particular relief. Neither the defendant nor the Court can alter the suit as one for a different relief or as a suit falling in a different category and require the plaintiff to pay court fee on such altered category of suit.
6. In my view, plaintiffs having right to decide the manner in which they seek relief, defendants have no right to contend that court fee was required to be paid under Section 35(1) of the Act. The order of the Trial Court being in contravention of the judgment of this Court referred to supra, deserves to be set aside. Accordingly, it is set aside. Valuation made by the plaintiff is held to be correct and proper. The Trial Court is directed to proceed further in accordance with law. Writ Petition is accordingly disposed of.
Sd/- JUDGE PKS