IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10th DAY OF DECEMBER, 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV WRIT PETITION No.27613/2015 (GM-CPC) BETWEEN:
1. SMT.SHARADAMMA W/O LATE KRISHNAREDDY AGED ABOUT 64 YEARS R/AT YAMALUR VILLAGE MARATHAHALLI POST BANGALORE-560037 2. SMT. RADHAMMA W/O SRINIVASA REDDY AGED ABOUT 60 YEARS R/AT BASAVANAPURA VILLAGE K R PURAM BANGALORE.
REP BY HER SPA HOLDER SRI LOKESH REDDY S/O LATE KRISHNAREDDY AGED ABOUT 40 YEARS R/AT YAMALUR VILLAGE MARATHAHALLI POST BANGALORE-560037. … PETITIONERS (BY SRI. V. ANAND, ADVOCATE) AND:
1. SMT.MANJULA W/O LATE N GOPALA REDDY AGED ABOUT 65 YEARS 2. SMT. MAMTHA D/O LATE N GOPALA REDDY AGED ABOUT 37 YEARS 3. SMT. VINUTHA D/O LATE N GOPALA REDDY AGED ABOUT 33 YEARS 4. SMT. CHAYA D/O LATE N GOPALA REDDY AGED ABOUT 31 YEARS ALL ARE RESIDING AT NO. 726/1, VIJAYA BANK COLONY, BANASWADI, BANGALORE-560043 5. SRI. N RAMASWAMY SINCE DECEASED BY HIS LRS 6. SRI P THAYANNA REDDY S/O LATE SRI C PILLA REDDY AGED ABOUT 54 YEARS R/AT NO. 134, OLD POST OFFICE ROAD, 2ND MAIN, DODDA BANASWADI BANGALORE-560043 7. SRI P O VIJAYA REDDY @ VIJAYA KUMAR REDDY S/O LATE SRI OBA REDDY AGED ABOUT 55 YEARS R/AT NO. 1260 A BLOCK, VIJANAPURA DOORAVANINAGAR POST BANGALORE-560016 8. SRI A RAJANNA S/O SRI ASHWATHAPPA AGED ABOUT 48 YEARS R/AT NO. 1423 OPP BMTC, 10TH DEPO 3RD CROSS, 1ST MAIN, 3RD BLOCK, AKKAYAMMA SIDDAPPAREDDY ROAD KALYAN NAGAR BANGALORE-560043 9. SRI RAJANNA @ G RAJAN S/O LATE SRI GANESH AGED ABOUT 50 YEARS R/AT NO. 175/4 VIKASA SCHOOL ROAD RAMAMURTHYNAGAR BANGALORE-560016 10. SRI V R NARAYANA RAO S/O LATE RAMACHANDRA RAO AGED ABOUT 46 YEARS R/AT NO.1120, BAYS WATER DR UNION, KY-41091, USA.
REP BY HIS GPA HOLDER SRI CHENNAM CHETTY NAGA HARSHA VARDHAN, S/O SRI CHENNAM CHETTY SESHAIAH AGED ABOUT 31 YEARS R/AT NO. 99, PRAKASAM ROAD CHITTOR DISTRICT ANDHRA PRADESH TIRUPATHI-571501.
11. M/S SAGAR HOTEL REP BY ITS PROPRIETOR 12. M/S VENKTESHWARA ELECTRICALS REP BY ITS PROPRIETOR 13. M/S HANSAM STUDYING REP BY ITS PROPRIETOR 14. M/S CHANDRAKALA FANCIES REP BY ITS PROPRIETOR 15. M/S LAUNDRY ENTERPRISES REP BY ITS PROPRIETOR 16. M/S LIAN LISHA REP BY ITS PROPRIETOR 17. M/S LAXMINARAYAN TRADERS REP. BY ITS PROPRIETOR 18. M/S MURGESH LADIES TAILOR REP BY ITS PROPRIETOR 19. M/S. J M J TECHNOLOGIES REP BY ITS PROPRIETOR 20. M/S SINDHI IMFRESH REP. BY ITS PROPRIETOR 21. M/S FLASH TAILORS REP BY ITS PROPRIETOR 22. M/S. NEW SHAMINA REP BY ITS PROPRIETOR 23. M/S. PRAJWALA TRANSPORT REP BY ITS PROPRIETOR 24. M/S. CHANDRAKALA ENTERPRISES REP BY ITS PROPRIETOR 25. M/S. VINAYAKA REAL ESTATE REP BY ITS PROPRIETOR 26. M/S. KAMITES TRADERS REP BY ITS PROPRIETOR 27. M/S. KAMITES ENTERPRISES REP BY ITS PROPRIETOR 28. M/S. GENIUS TRADERS REP BY ITS PROPRIETOR 29. SLV ENTERPRISES REP BY ITS PROPRIETOR 30. M/S. RAJA MADRAS STEEL REP BY ITS PROPRIETOR 31. M/S. MAHALAXMI ENTERPRISES REP BY ITS PROPRIETOR 32. M/S. RACHANA BEAUTY PARLOUR REP BY ITS PROPRIETOR 33. MR VINOD PROPRIETOR OF CHILDREN PLAY HOME DEFENDANTS 11 TO 37 ARE CARRYING THEIR BUSINESS AT BANASWADI, RAMAMURTHYNAGAR MAIN ROAD, BANGALORE-560043 34 . SMT. BHAGYAMMA, W/O SHANKAR REDDY AGED ABOUT 40 YEARS, R/AT BANASWADI, RAMAMURTHYNAGAR MAIN ROAD, BANGALORE-560 043.
…RESPONDENTS (BY SRI. G PAPI REDDY, ADV. FOR R1 TO R4; V/O DATED 14.12.2015 PETITION AGAINST R5, R11 TO R34 ARE DISMISSED;
R6, R7, R8, R9 AND R10 ARE SERVED) THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED 15.12.2014 PASSED BY THE V ADDITIONAL CITY CIVIL JUDGE AT BANGALORE (CCH-13) VIDE ANNEXURE-A AND ETC.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT, MADE THE FOLLOWING:
ORDER Petitioner has challenged the order on issue No.13 whereby the trial Court has recorded a finding that the valuation made under Section 35(2) of the Karnataka Court Fees & Suits Valuation Act, 1958 (for short ‘the Act’) is incorrect and has directed the plaintiffs to value the suit properties under Section 35(1) of the Act.
2. The plaintiffs who are the sisters of Gopala Reddy and Ramaswamy had filed a suit for partition while specifically asserting at paragraph 20 of their plaint that they are in joint possession and enjoyment of the schedule properties. The plaintiffs had valued the relief under Section 35(2) of the Act on the premise that they were in joint possession and enjoyment of the schedule properties. The defendants filed their written statement and specifically contended that the Court fee paid and valuation is not in accordance with law while denying the averment of joint possession as made out in the plaint.
3. The trial Court has framed issues and has treated issue No.13 relating to sufficiency of the Court fee paid and valuation as a preliminary issue and has recorded the finding that the valuation is incorrect and suit ought to be valued under Section 35(1) of the Act.
4. At the outset, it is to be noted that the full bench of this court in the case of VENKATESH R. DESAI v. SMT. PUSHPA HOSMANI AND OTHERS – ILR 2018 KAR 5095 has held that the question as to valuation is not invariably to be decided as a preliminary issue unless it touches the jurisdiction. In the present case, there is no question that has arisen relating to jurisdiction of the Court and accordingly, the Court ought not to have decided the issue regarding sufficiency of payment of Court fee and valuation as a preliminary issue. Though the judgment of the Full Bench has been rendered later, it merely declares the law as laid down by the Division Bench in the case of NANJAMMA V. AKKAYAMMA AND OTHERS - 2015 (3) KAR. L.J. 357 and the same is to be taken note of. The counsel for the petitioner has contended that the manner in which the trial Court has proceeded while deciding the issue requires to be reconsidered.
5. Learned counsel for the petitioners would contend that the plaintiffs are not parties to Ex.D.3, which is the partition deed and hence, reliance by the trial Court on the said document to hold that the plaintiffs have been excluded from possession ought not to be held against the plaintiffs. It is further contended that in a suit for partition, the plaintiffs are deemed to be in constructive possession despite sale transactions and reliance has been placed on the judgment of the Apex Court in the case of JAGANNATH AMIN V. SEETHARAMA (DEAD) BY LRS. AND OTHERS – 2007 (1) SCC 694.
6. It is further contended that the averments in the plaint ought to be looked into while deciding the question of valuation and it is not the defence taken by the defendants in the evidence led that needs to be taken note of.
7. Notice was issued to the learned counsel appearing for the State and learned HCGP has expressed his views as regards to the validity of the impugned order.
8. The trial Court while deciding the issue afresh is to take note of the law as laid down by the Apex Court and also the contentions of the plaintiffs that has not been considered in an appropriate manner.
9. Accordingly, in light of the judgment of the Full Bench in the case of VENKATESH R. DESAI (supra) the finding on the preliminary issue is set aside with a direction that the Court would deal with the said issue along with other issues. However, the trial Court while deciding the issue has to take note of the contentions of the plaintiffs as adverted to above including the judgment of the Apex Court in the case of JAGANNATH AMIN (supra) and arrive at a considered decision.
Accordingly, the impugned order is set aside and the petition is allowed.
Sd/- JUDGE VP