IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF MARCH 2019 BEFORE THE HON’BLE MR. JUSTICE B. VEERAPPA WRIT PETITION NO.38856 OF 2016 (GM-CPC) BETWEEN:
SURESH H. M.
S/O. LATE MUDDU POOJARI, AGED ABOUT 37 YEARS, R/O. "SINCHU", H. NO.52, 100 FEET ROAD, GOPALA GOWDA EXTENSION, SHIVAMOGGA CITY-577 201.
(BY SRI. S. V. PRAKASH, ADV.) AND 1. GIRISH K. D.
S/O. DHARMANNA, AGED ABOUT 37 YEARS, R/O. D.H. BUILDING, 1ST CROSS, DURGIGUDI EXTENSION, SHIVAMOGGA-577 201.
2. M. P. GIDDAPPA GOWDA S/O. LATE M.C. PUTTAIAH GOWDA, AGED ABOUT 47 YEARS, R/O. H. NO. PE-03/1, K.P.C., SVP COLONY QUARTERS, JOG SAGAR TALUK, SHIVAMOGGA DISTRICT - 577201 (BY SRI. L. T. GOPAL, ADV. FOR R1 SRI. CHANDRASHEKAR, ADV. FOR R2) ... PETITIONER ... RESPONDENTS THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD.30.5.2016 PASSED BY THE LEARNED II ADDITIONAL SENIOR CIVIL JUDGE, SHIVAMOGGA, ANSWERING THE ADDITIONAL ISSUE NO.1 IN THE AFFIRMATIVE HOLDING THAT THE COURT FEES PAID BY THE PETITIONER / PLAINTIFF IN RESPECT OF SECOND RELIEF OF DECLARATION AND TO DIRECT THE PETITIONER/ PLAINTIFF TO PAY THE COURT FEES ON THE SAID RELIEF UNDER SECTION 38 OF THE KCF AND SV ACT, VIDE ANNEX-D TO THE W.P.; HOLD THAT THE COURT FEES PAID BY THE PLAINTIFF / PETITIONER IN THE SUIT IN O.S.NO.116/2013 IS SUFFICIENT IN RELATION TO THE RELIEF OF THE DECLARATION.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
Order The plaintiff has filed the present writ petition against the order dated 30.05.2016 passed in O.S.No. 116/2013 answering additional issue No.1 in the affirmative holding that the suit is not properly valued by the plaintiff and directed to correct the valuation of the suit.
2. The plaintiff filed the suit for specific performance and for declaration that the sale deed dated 22.07.2011 executed by defendant No.1 in favour of defendant No.2 is null and void and not binding on the plaintiff and for permanent injunction contending that the defendant No.1 executed agreement of sale in favour of plaintiff on 26.11.2010, for a valuable consideration. Defendant No.1 filed written statement admitting the allegations made in favour of defendant No.2. The defendant No.2 filed written statement denying the plaint averments and contended that he is a bonafide purchaser of the property in question and sought for dismissal of the suit. In the written statement, defendant Nos.1 and 2 have categorically denied the allegations of the plaint and contended that the suit is not properly valued and Court fee paid is insufficient. Whereas, on the pleadings, the trial Court framed the following preliminary issue:
Whether the defendants prove that suit is not properly valued and Court fee paid is insufficient?
Considering the entire material on record, the trial Court was of the view that the suit filed by the plaintiff was for specific performance and virtually for cancellation of the sale deed and therefore the plaintiff has to pay Court fee under the provisions of Section 38 of the Karnataka Court Fees and Suits Valuation Act, 1958 (hereinafter referred to as ‘the Act’, for short), relying upon the judgment of this Court in the case of GURU PRASAD & ORS. VS. S. A. RUDRARADHYA & ORS.
[2010 (4) KAR.L.J. 102]. Hence this writ petition.
3. I have heard the learned counsel for the parties to the lis.
4. Sri. S. V. Prakash, learned counsel for the petitioner contended that the impugned order passed by the trial Court directing the plaintiff to pay proper court fee, is erroneous and contrary to the material on record. He further contended that admittedly plaintiff filed the suit for specific performance directing the defendant No.1 to execute a registered sale deed. The second relief sought was to the effect that the sale deed dated 22.07.2011 executed by the defendant No.1 in favour of defendant No.2 is null and void and not binding on the plaintiff. Therefore, the question of paying court fee as directed by the trial Court, would not arise. He would further contend that the court below failed to notice that the language couched under Section 38 of the Act applies only for declaratory decree involving injunction and cancellation of documents, relating to immovable property. The learned trial Judge wrongly relied upon the judgment of this Court which has no application to the facts and circumstances of the present case. Hence he sought to allow the petition.
5. Per contra, Sri. Gopal, learned counsel for the respondent No.1 and Sri. Chandrashekar , learned counsel for respondent No.2, sought to justify the impugned order. Learned counsel for the respondent No.2 submits that the prayer sought is null and void and amounts to cancellation. Therefore, the plaintiff has to pay the Court fee under Section 38 of the Act. Therefore he sought to dismiss the writ petition.
6. Having heard the learned counsel for the parties, it is undisputed fact that plaintiff filed the suit for specific performance to enforce the agreement dated 26.11.2010 and to declare that the sale deed dated 22.07.2011 executed by defendant No.1 in favour of defendant No.2 is null and void and not binding on the plaintiff. A careful perusal of the prayer sought in the plaint clearly indicates that a declaration that the sale deed dated 22.07.2011 is not binding on the plaintiff is a consequential relief and it is ultimately for the plaintiff to succeed based on the oral and documentary evidence to be adduced by the parties. The Hon'ble Supreme Court in the case of SUHRID SINGH @ SARDOOL SINGH VS. RANDHIR SINGH & ORS. [AIR 2010 SC 2807] in identical circumstance, at paragraphs 7 and 8, has held as under:
7. In this case, there is no prayer for cancellation of the sale deeds. The prayer is for a declaration that the deeds do not bind the “coparcenery” and for joint possession. The plaintiff in the suit was not the executant of the sale deeds. Therefore, the Court-fee was computable under section 7(iv)(c) of the Act. The trial Court and the High Court were, therefore, not justified in holding that the effect of the prayer was to seek cancellation of the sale deeds or that, therefore, Court-fee had to be paid on the sale consideration mentioned in the sale deeds.
8. We accordingly allow these appeals, set aside the orders of the trial Court and the High Court directing payment of Court-fee on the sale consideration under the sale deeds dated 20.4.2001, 24.4.2001, 6.7.2001 and 27.9.2003 and direct the trial Court to calculate the Court-fee in accordance with Section 7(iv)(c) read with Section 7(v) of the Act, as indicated above, with reference to the plaint averments.
7. In view of the aforesaid reasons, the writ petition is allowed. The impugned order passed by the trial Court dated 30.05.2016, is hereby quashed. The Court fee paid by the plaintiff on the consequential relief of declaration that the sale deed dated 22.07.2011 is not binding on the plaintiff, is sufficient.
8. Since the suit is of the year 2013, both the parties to the lis are directed to cooperate with the court below and the trial Court is directed to expedite the suit itself, in accordance with law.
Sd/- Judge RD