IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 31ST DAY OF JANUARY, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL NO. 80/2015(PAR) BETWEEN:
1. SRI E. NATARAJ, S/O LATE V. D. EKAMBARAM AGED ABOUT 46 YEARS 2. KUMARI DIVYA D/O E. NATARAJ AGED ABOUT 14 YEARS 3. KUMARI MUNISHA D/O E. NATARAJ AGED ABOUT 13 YEARS THE APPELLANT NO. 1 REPRESENTING THE APPELLANT NO.2 & 3 AS A NATURAL GUARDIAN APPELLANT NO.1 IS FATHER OF APPELLANT NO.2 & 3 ALL ARE RESIDING AT N. S. GOWDA BUILDING, 1ST FLOOR, NEAR BUNDI REDDY CIRCLE, SRIRAMPURAM, BANGALORE-560021.
... APPELLANTS (BY SRI ANJANEYA, ADVOCATE) AND:
SRI KANNAN S/O LATE V. D. EKAMBARAM AGED ABOUT 55 YEARS RESIDING AT NO. 54 (NEW NO. 30), 2ND CROSS SRIRAMAPURAM BENGALURU-560021.
(BY SRI T.P. VIVEKANANDA, ADVOCATE) **** ... RESPONDENT THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC, FILED AGAINST THE ORDER DATED 13.11.2014 PASSED ON IA.NO.8 IN OS.NO.3337/2009 ON THE FILE OF THE XXXVIII ADDITIONAL CITY CIVIL & SESSIONS JUDGE, BENGALURU, DISMISSING IA UNDER SECTION 151 OF CPC AND FURTHER REJECTING THE PLAINT.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT Heard the appellants’ counsel on admission. Counsel for the respondent is also present. Since the plaint was rejected according to Order VII Rule 11(b) and (c) of Code of Civil Procedure, I think that this appeal can be disposed of now itself.
2. The appellants are the plaintiffs in suit O.S.No.3337/2009 on the file of the City Civil Court, Bengaluru. They have brought a suit for partition claiming 1/6th share in the plaint schedule property. In the plaint, it is clearly stated that the suit property was purchased by Smt.E. Padma, mother of the first plaintiff and the first defendant, on 04.10.1976. The plaintiffs alleged that on 13.06.1990, the first defendant was able to obtain a sale deed from the mother, clandestinely, without plaintiffs’ knowledge. It is stated that plaintiffs have got 1/6th share.
3. The defendant appeared and filed his written statement.
Among other contentions taken by him, he has also pleaded that the suit is not properly valued and the court fee paid is insufficient. In this regard, the Trial Court framed issue No.4 and while answering it observed that, in the plaint the joint possession of the plaintiffs with defendant has not been pleaded. More over, the other children of V.D.Ekambaram are not made parties to the suit. The suit could not have been valued as per Section 35(2) of the Karnataka Court Fee and Suits Valuation Act. The Trial Court passed an order on 10.07.2014 directing the plaintiffs to file fresh valuation slip according to Section 35(1) of the Karnataka Court Fee and Suits Valuation Act and pay additional court fee on or before 07.08.2014. That order was not challenged by the plaintiffs. For not paying the deficit court fee within the time given, the Trial Court passed one more order on 13.11.2014 rejecting the plaint, exercising power under Order VII Rule 11(b) and (c) of the Code of Civil Procedure.
4. The plaintiffs should have challenged the order dated 10.07.2014, if Trial Court had passed that order erroneously. When it was not challenged, the plaintiffs were under obligation to pay additional court fee by valuing the suit according to Section 35(1) of the Karnataka Court Fee and Suits Valuation Act. When that order was not complied with, the Trial Court was justified in rejecting the plaint. I do not find any good ground to entertain this appeal. The appeal is dismissed.
5. In view of the dismissal of the appeal, I.A.No.3/2015 does not survive for consideration.
Sd/- JUDGE kcm