IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18TH DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO.10240 OF 2017 (GM-CPC) BETWEEN 1. SRI.B.S.VASUDEV, S/O LATE B.S.S.RAO, AGED ABOUT 62 YEARS, RESIDING AT NO.374, 1ST BLOCK, 8TH CROSS, JAYANAGAR, BANGALORE - 560 061.
2. SRI.K.NARAYANAGOWDA, S/O SRI.H.KEMPAIAH, AGED ABOUT 58 YEARS, RESIDING AT NO.C-8, UAS QUARTERS, HEBBAL, BANGALORE - 560 094.
3. CENTRAL EXCISE HOUSE BUILDING COOPERATIVE SOCIETY LTD. REPRESENTED BY ITS SECRETARY, CENTRAL REVENUE BUILDING, QUEEN’S ROAD, BENGALURU – 560 001. … PETITIONERS (BY SRI.KRISHNA MURTHY V, ADVOCATE) AND 1. MRS.NAJMUNNISSA, W/O MR.NOOR PASHA, D/O LATE SYED YUSUF, AGED ABOUT 63 YEARS, RESIDING AT NO.68, 1ST CROSS, OPP. ANJANEYA TEMPLE, BHOOPASANDRA EXTN., 2ND STAGE, SANJAY NAGAR, BENGALURU - 560 094.
2. MRS.TAJUNNISSA, W/O LATE SYED ISAAC, D/O LATE SYED YUSUF, AGED ABOUT 68 YEARS, RESIDING AT NO.52, 1ST CROSS, OPP. ANJANEYA TEMPLE, BHOOPASANDRA EXTN., 2ND STAGE, SANJAY NAGAR, BENGALURU - 560 094.
3. MRS.SIRAJUNNISSA, W/O LATE SYED GHOUSE, AGED ABOUT 55 YEARS, 4. ASMA BANU, D/O LATE SYED GHOUSE, AGED ABOUT 37 YEARS, RESIDING AT MEEN HOUSE, R.M.V. II STAGE, BHOOPASANDRA, BENGALURU - 560 094.
5. MYMUNNISSA, D/O LATE SYED GHOUSE, AGED ABOUT 35 YEARS, 6. SYED YUSUF, S/O LATE SYED GHOUSE, AGED ABOUT 33 YEARS, 7. NAZEEMA BANU, D/O LATE SYED GHOUSE, AGED ABOUT 32 YEARS, RESPONDENT NOS.5 TO 7 ARE RESIDING AT NO.25, MOHAMMED LAYOUT, R.M.V. II STAGE, BHOOPASANDRA, BENGALURU - 560 094.
8. SYED JAMEEL, S/O LATE SYED GHOUSE, AGED ABOUT 31 YEARS, RESIDING AT NO.40, MASJID ROAD, R.M.V. II STAGE, BHOOPASANDRA, BENGALURU - 560 094.
9. SALMA BANU, D/O LATE SYED GHOUSE, AGED BOUT 29 YEARS, 10. SYED IRFAN, S/O LATE SYED GHOUSE, AGED BOUT 28 YEARS, RESPONDENT NOS.1, 3, 4, 9 & 10 ARE RESIDING AT NO.19, 2ND CROSS, MOHAMMED LAYOUT, R.M.V. II STAGE, BHOOPASANDRA, BENGALURU - 560 094. …RESPONDENTS (BY SRI.D.P.SHIVA PRASAD, ADVOCATE FOR R1 & R2; PETITION AGAINST R3 TO R10 IS DISMISSED V/O DTD 14.08.2019; NOTICE TO R7 IS D/W V/O DTD 10.10.2019) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 23.1.2017 AT ANNEX-E PASSED ON I.A.5 UNDER ORDER VII RULE 11(b) AND (d) R/W SEC. 151 OF CPC PASSED BY THE X ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING – B GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioners being the defendants in a declaration suit in O.S.No.5713/2014, are invoking the writ jurisdiction of this court for assailing the order dated 23.01.2019, a copy whereof is at Annexure – E, whereby their application in I.A.No.5 filed under Order VII Rule 11(b) & (d) r/w Section 151 of CPC, has been dismissed by the learned X Addl. City Civil Judge, Bengaluru. After service of notice, the respondent-plaintiff Nos.1 & 2 having entered appearance through their counsel, resist the Writ Petition.
2. The impugned order refusing to treat the issue as to the suit valuation and court fee as a preliminary issue cannot be faltered in view of the Full Bench decision of this Court in 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.”
3. The court below admittedly has framed three additional issues apart from the ones that were framed earlier and one of such additional issues relates to proper suit valuation and payment of court fee on which both the parties can lead evidence in the course of trial, since it is a mixed question of law and facts that needs to be tried.
In the above circumstances, the Writ Petition being devoid of merits, is dismissed; however, all contentions of the parties are kept open.
No costs.
Sd/- JUDGE cbc