IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE KRISHNA S DIXIT WRIT PETITION No.1602/2015 (GM-CPC) BETWEEN:
SRI M.SATHYANARAYANA S/O LATE CHIKKAMUNISHAMAPPA, HINDU, AGED ABOUT 65 YEARS, FORMERLY RESIDING AT NO.1042, 10TH "D" CROSS, WEST OF CHORD ROAD, MAHALAKSHMIPURAM, BENGALURU-560 086.
PRESENTLY RESIDING AT NO.7, 6TH CROSS, 8TH MAIN, JC NAGAR, MAHALAKSHMIPURAM, BENGALURU-560 086. ... PETITIONER (BY SRI. B.JANARDHANA, ADVOCATE) AND 1. SMT. KAMALAMMA, D/O LATE BALAGURAPPA, HINDU, AGED ABOUT 40 YEARS, RESIDING AT NO.108, 15TH MAIN, SRINAGAR, BENGALURU-560 050.
2. SMT. MUNILAKSHMAMMA, D/O LATE POOJAPPA, HINDU, AGED ABOUT 62 YEARS, RESIDING AT NO.25/D, 24TH "B" MAIN, ROAD, PIPELINE ROAD, J C NAGAR, KURUBARAHALLI, MAHALAKSHMIPURAM (POST), BENGALURU-560 086.
3. SRI. VENKATESH S/O LATE POOJAPPA, HINDU, AGED ABOUT 56 YEARS, RESIDING AT NO.589, 10TH "C" CROSS, III MAIN, II STAGE, MAHALAMSHMIPURAM, BENGALURU-560 086.
4. SMT. NAGARATHNA, D/O LATE POOJAPPA, HINDU, AGED ABOUT 51 YEARS, RESIDING AT NO. 1042, 10TH "D" CROSS, II STAGE, WEST OF CHORD ROAD, MAHALAKSHMIPURAM, BENGALURU-560 086.
5. SMT. SAVITHRAMMA W/O LATE MUNIYAPPA, HINDU, AGED ABOUT 69 YEARS, RESIDING AT NO.17, ARAHALLI GRAMA, UTTARAHALLI HOBLI, SUBRAMANIPURA POST, BENGALURU-560 061.
6. SMT. SUNITHA, W/O LATE ANJINAPPA, HINDU, AGED ABOUT 40 YEARS, 7. SMT. RATHNAMMA, D/O LATE MUNIYAPPA, HINDU, AGED ABOUT 47 YEARS, 8. SMT. NEELAMMA, D/O LATE MUNIYAPPA, HINDU, AGED ABOUT 45 YEARS, 9. SMT. AMBA, D/O LATE MUNIYAPPA, HINDU, AGED ABOUT 42 YEARS, 10. SRI. NAGARAJA, S/O LATE MUNIYAPPA, HINDU, AGED ABOUT 40 YEARS, 11. SMT. GOWRAMMA D/O LATE MUNIYAPPA, HINDU, AGED ABOUT 38 YEARS, 12. SRI. M NARAYANASWAMY, S/O LATE MUNIYAPPA, HINDU, AGED ABOUT 35 YEARS, NOS.5 TO 12 RESIDING AT NO.17, ARAHALLI VILLAGE, UTTAHARAHALLI HOBLI, SUBRAMANYAPURA POST, BENGALURU-560 061.
13. SRI. MUNIRAJU, S/O LATE SRIKANTAPPA, HINDU, AGED ABOUT 55 YEARS, RESIDING AT NO.10/18, 19TH ‘A’, CROSS, III MAIN ROAD, AGRAHARADASARAHALLI, BENGALURU-560 079.
14. SMT. KRISHNAMMA, D/O LATE CHIKKAMUNISHAMAPPA, SINCE DECEASED REPRESENTED BY HER LRS 14(a) SMT. GOWRAMMA D/O LATE KRISHNAMMA AGED ABOUT 50 YEARS, 14(b) SRI MUNIRAJ, S/O LATE KRISHNAMMA AGED ABOUT 46 YEARS, 14(c) SRI. MUNIKRISHNA S/O LATE KRISHNAMMA AGED ABOUT 38 YEARS, NOS14(a) TO 14(c) RESIDING AT NO.10/18, 19TH ‘A’ CROSS, III MAIN ROAD, AGRAHARADASARAHALLI, BENGALURU-560 079.
15. SRI. A.VENKATESH S/O ANJINAPPA, AGED ABOUT 33 YEARS, RESIDING AT NO.279, KENGERI VILLAGE, KENGERI HOBLI, BENGALURU-560 060. ... RESPONDENTS (BY SRI.S.NAGABHUSHANA, ADVOCATE FOR R15; SRI.THIMMANNA, ADVOCATE FOR R1;
R3, R10, R12, R14(a), R14(b), R14(c) ARE SERVED; V/O DT: 25.04.2017, SERVICE OF NOTICE TO R5 & R13 IS HELD SUFFICIENT; V/O DT:13/7/2018, SERVICE OF NOTICE TO R2, R4, R6 TO R9, R11 IS DISPENSED WITH) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH / SET ASIDE THE ORDER VIDE ANN-A i.e. THE ORDER DATED 9.12.2014 PASSED IN O.S. NO. 848 OF 2011 ON THE FILE OF THE HON'BLE V ADDL. CITY CIVIL JUDGE AT BANGALORE AND ETC.
THIS WRIT PETITION IS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER Petitioner being the plaintiff in a partition suit in O.S.No.848/2011, is invoking the writ jurisdiction of this court for assailing the order dated 09.12.2014, a copy whereof is at Annexure-A whereby, the learned V Addl. City Civil Judge at Bangalore having framed Additional Issue No.1 as to the payment of court fee, has answered the same against him and thereby, has “directed to value the suit property as per sec.35(1) of the Karnataka Court Fees & Suits Valuation Act, 1958 and “pay court fee …….”
2. The respondent/defendants after service of notice, having entered appearance through their counsel resist the Writ Petition inter contending that the impugned order is unassailable inasmuch as the lands in dispute are no longer the agricultural lands.
3. Having heard the learned counsel for the parties and having perused the Petition Papers, petitioner needs to be granted reprieve for the following reasons:
(a) whether the suit property is agricultural land or not is a mixed question of law which needs to be tried in the suit; such an issue cannot be decided merely on the basis of scanty material on record; and (b) the additional issue as to the payment of court fee could not have been tried as a preliminary issue in view of the law declared by the Full Bench of this Court in the case Venkatesh R.Desai Vs. Smt.Pushpa Hosamani and others, ILR 2018 KAR 5095 inasmuch as it is not linked with the pecuniary jurisdiction of the Court; the Full Bench observed that by virtue of Section 11 of the Karnataka Court Fees and Suits Valuation Act, 1958 read with Order 14 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 pecuniary jurisdiction of the trial court.
In the above circumstances, this Writ Petition succeeds in part; the impugned order is set at naught; The Court below shall try the subject issue relating to valuation and court fee along with other companion issue in the suit.
All contentions of the parties are kept open.
Sd/- JUDGE UN