R WP 56083/2016 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF MAY 2019 BEFORE THE HON’BLE MR.JUSTICE G.NARENDAR WRIT PETITION No.56083/2016 (GM CPC) BETWEEN 1. SMT VASANTHI SHETTIGARTHI, AGED ABOUT 58 YEARS, W/O KRISHNAPPA SHETTIGARA, 2. SAVITRI, AGED ABOUT 32 YEARS, 3. SOWMYA, AGED ABOUT 28 YEARS, 4. SWATHI, AGED ABOUT 23 YEARS, NOS. 2 TO 4 ARE DAUGHTERS OF LATE KRISHNAPPA SHETTIGAR ALL ARE RESIDING AT KELAKILA, MUDRADI VILLAGE AND POST, KARKALA TALUK-576102.
... PETITIONERS (BY SRI. SHRIHARI K, ADV.) AND K BALACHANDRA RAO, AGED ABOUT 74 YEARS, S/O LATE K. RAMAKRISHNA RAO, RESIDING AT "SANGEETHA" HOUSE, AJJARAKAD, BHAGATH SINGH MARG, UDUPI-576101.
... RESPONDENT (BY SRI. SAMPATH ANAND SHETTY, ADV.) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE JUDGMENT DATED 01.09.2016 IN O.S.314/2009 ON THE FILE OF ADDL. CIVIL JUDGE AND JMFC, UDUPI AT ANNEX-A ETC.
THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS, THIS DAY THE COURT PRONOUNCED THE FOLLOWING:
DATE OF RESERVING THE ORDER : 19.04.2018 DATE OF PRONOUNCEMENT OF ORDER : 28.05.2019 ORDER 1. The petitioners are plaintiffs 2 to 5 before the Trial Court in O.S.No.314/2009 and are the wife and daughters of plaintiff No.1.
2. Facts in brief:-
The case of the plaintiffs is, that deceased plaintiff No.1 and plaintiff No.2 are husband and wife and plaintiffs 3 to 5 are the unmarried daughters of plaintiffs 1 & 2. The plaintiffs contended that deceased plaintiff No.1 was the owner of the suit schedule property and that the said property was granted to him by the orders of the Land Tribunal. It was contended that deceased plaintiff No.1 was the person of low IQ and susceptible social behaviour, and therefore, plaintiffs 2 to 5 were eking out their livelihood as coolies. It was contended that plaintiffs 1 & 2 approached the defendant to initiate legal proceedings against the sister of deceased plaintiff no.1 to recover possession of the suit schedule property and that the said suit came to be compromised and as a result of the said compromise, deceased plaintiff No.1 relinquished a small portion of the land in favour of his sister. It was contended that after the decreeing of the suit, the defendant raised a demand for his professional charges and demanded Rs.5 lakhs towards the same. It was also contended that the defendant demanded huge sums without reference to the fact of coolie work rendered by plaintiffs 1 & 2 in the property of the defendant and that the defendant taking advantage of his standing as an advocate and also taking advantage of the weakness of plaintiffs 1 & 2, more particularly plaintiff No.1, took them to Sub-Registrar’s office and got executed the sale deed dated 15.05.2008 and no consideration whatsoever was paid by the defendant and that the sale deed was executed under threat and coercion, and fraud was played by the defendant along with his office colleagues. It was also contended that one of defendant’s colleagues was then functioning as a Government Advocate and that the said person taking advantage of his office, brought pressure upon the jurisdictional Sub-Registrar and on the threat given by the defendant and his juniors, deceased plaintiff No.1 was forced to execute the sale deed, and hence, they had filed the suit for cancellation of the sale deed.
3. The said suit came to be resisted by the defendant. It was contended by him that deceased plaintiff No.1 was his client and that he had struggled hard to succeed in the judicial proceedings instituted by deceased plaintiff No.1 and that deceased plaintiff No.1 persistently requested him to purchase the property and hence, defendant agreed to purchase the same and the sale deed was executed by the deceased plaintiff out of his own free will and volition and that neither he nor his colleagues played any fraud nor coerced plaintiff No.1 to execute the sale deed. It was contended by the defendant that the institution of the suit is at the instigation of those who are inimically disposed towards the defendant and that even some of the advocates are inimically disposed towards the defendant and hence the present suit was instituted. It was also contended by the defendant that plaintiffs 1 & 2 did not enjoy a cordial relationship and that deceased plaintiff No.1 was tortured by plaintiff No.2 and her relatives and that plaintiff No.2 had abandoned plaintiff No.1 and hence, plaintiff No.1 pleaded the defendant to purchase the suit schedule property.
4. It is submitted that the Trial Court had initially framed five issues, and thereafter, two additional issues came to be framed. The additional issues are as under:
(1) Whether the defendant proves that the court has no pecuniary jurisdiction to entertain the suit?
(2) Whether the defendant proves that the court fee paid is insufficient?
5. The additional issues were framed on 09.02.2012 and were treated as preliminary issues as they pertained to the jurisdiction of the Trial Court. The matter was heard by the Trial Court on 01.09.2016 and orders came to be passed on the same day, whereby the Trial Court held that it has no pecuniary jurisdiction to try the suit, and hence, directed the office to return the plaint to present it before the court having pecuniary jurisdiction. Aggrieved by the same, plaintiffs 2 to 5 have filed this writ petition.
6. Learned Counsel for the petitioners contends that the order is vitiated by non-application of mind. It is further contended that the reliance on the alleged market value stated in the body of the plaint is contrary to law and that the Trial Court was bound to look into the valuation slip either for the purpose of court fee payable or the pecuniary jurisdiction and that reliance wholly on the specuous and un-substantiated plea in the body of the plaint to arrive at a conclusion with regard to the jurisdictional issue is contrary to the provisions of the Karnataka Court Fees and Suits Valuation Act, 1958 (for short, ‘KCF & SV Act’), thereby rendering the impugned order illegal, and hence, on this ground alone, the writ petition requires to be allowed and the impugned order requires to be set aside.
7. It is further contended that the act of the Trial Court in ignoring the valuation set out by the plaintiffs is not supported by reason and hence the same is vitiated by arbitrariness and on this ground also, the impugned order warrants interference at the hands of the Court.
8. It is further contended by the learned Counsel that the finding of the Trial Court with regard to the issue of court fee with regard to consequential relief of possession is not supported by reasons and thereby rendering it a non-speaking order. It is further contended that the Trial Court failed to take into consideration and appreciate the plea of fraud played by the defendant, which led the plaintiffs to seek for decree of cancellation of sale deed.
9. Per contra, learned Counsel for the respondent would vehemently submit that the Trial Court has rightly placed reliance on the pleadings to hold that the market value of the suit property is Rs.30 lakhs and hence, the Trial Court being the Court of Civil Judge (Jr.Dn.), has rightly placed reliance on the pleading in the body of the plaint and has correctly arrived at the conclusion that it does not have pecuniary jurisdiction to try the suit in the light of the provisions of Section 17 of the Karnataka Civil Courts Act, 1964. The Learned Counsel has placed reliance on the judgment rendered by this Court in the case of MR. V.PRABHAKAR VS MR. K.RAJA & OTHERS – ILR 2012 KAR 3558, wherein this Court after adverting to the facts and the provisions of Section 38 of the KCF & SV Act, has held in paragraphs 9, 10, 12, 13, 14, 15 & 16 as under:
“9. In order to determine the proper Court fee payable by the plaintiff, we have to first ascertain the substantial relief sought for in the plaint. In a multifarious suit, while determining the proper Court fee payable on the plaint, the Court has to see the nature of the suit and the reliefs claimed. If a substantive relief is claimed, though clothed in the garb of a declaratory decree with a consequential relief, the Court is entitled to see what is the real nature of the relief, and if satisfied, that it is not a mere consequential relief but a substantive relief, it can demand the proper Court fee on that relief, irrespective of the arbitrary valuation put by the plaintiff in the plaint on the ostensible consequential relief (See SHIVAPPA SATYAPPA MUDAKANNAVAR VS. SATYAPPA YELLAPPA MUTTAPAGOL & OTHERS).
10. In the instant case, the substantive relief sought in the plaint is for cancellation of the sale deed in the garb of a declaratory decree. The second relief is for grant of prohibitory injunction though styled as for mandatory injunction, which is ancillary to the main relief. If the relief is sought only as ancillary to the main relief, the plaintiff has to be charged only on the value of the main relief as provided in Section 6 of the Act. Therefore, the plaintiff has to value the suit for the purpose of Court fee under Section 38 and not under Section 24 of the Act.
11. xxxx 12. Section 38(1) of the Act provides for payment of Court fee in a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property. It is as under:
“38. Suits for cancellation of decrees, etc:- (1) In a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject matter of the suit, and such value shall be deemed to be.-
If the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed:
If a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property.”
13. The above provision contains the expression “value of the subject matter”. Therefore, the question for consideration is whether the said expression means market value of the property as on the date of presentation of the plaint or the value stated in the document. A Division Bench of this Court in R.RANGAIAH & ANOTHER VS.
THIMMA SETTY & OTHERS – was interpreting Section 4(iv)A of the Mysore Court Fees Act, 1900, which is more or less similar to Section 38(1) of the Act. The Court has held that what is relevant for the purpose of Section 4(iv)A is not the value of the property specified in the document but its real and actual value when the suit is brought.
14. In MAHABOOBSAB VS GOUDAPPA, this Court was considering a similar question under Section 38(1) of the Act. While following the decision in R.RANGAIAH’s case, it has been held as under:
“The value of the property in Section 38(1) must be understood as the market value of the property and not the amount of consideration mentioned in the deed sought to be cancelled. Thus, in a suit for cancellation of a sale deed, the plaintiff is justified in valuing the suit on the basis of the market value of the property which was the subject matter of the sale deed.”
15. Section 7 of the Act provides for determination of the market value of the property for the purpose of Section 38 and certain other provisions of the Act. Sub- Section (1) of Section 7 states that where the fee payable under the Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint.
16. Thus, it is clear that in a suit for cancellation of the sale deed, the Court fee has to be computed on the basis of the market value of the property, which is the subject matter of the sale deed in question as on the date of the presentation of the plaint. The market value has to be determined in accordance with Section 7 of the Act.”
10. Learned Counsel has also placed reliance on the decisions in the case of HANUMANTHAPPA & ANR. VS CHANDRASHEKARAPPA & ORS. – ILR 1996 KAR 3628 and in the case of M/S. INSTRUMENTS INCORPORATED VS M/S. INDUSTRIAL CABLES (INDIA) LTD. & OTHERS – AIR 1996 KARNATAKA 360. The said rulings in the opinion of this Court are inapplicable to the facts and circumstances of the present case and the point involved for consideration.
11. This Court has given its anxious consideration to the various contentions and has also perused the reasons set forth by the Trial Court for arriving at a conclusion to hold that it has no pecuniary jurisdiction to try the suit. In the light of the above contentions the point for consideration that arises, is whether the order impugned is sustainable in law?
12. The Trial Court has nowhere referred either to the provisions of the KCF & SV Act or the Karnataka Civil Courts Act, 1964. It is not in doubt that the pecuniary jurisdiction of the suits that may be tried by the Civil Judge is governed by Section 17 of the Karnataka Civil Courts Act, 1964.
13. Be that as it may, this Court as stated supra in V.Prabhakar’s case, has held that in order determine the court fee payable by the plaintiff, the Court has to first ascertain the substantial relief sought for in the plaint and that if a substantive relief is claimed, though clothed in the garb of a declaratory decree with a consequential relief, the Court is entitled to see what is the real nature of the relief, and if satisfied, that it is not a mere consequential relief but a substantive relief by itself, it can demand the proper court fee on that relief, irrespective of the arbitrary valuation put forth by the plaintiff in the plaint. This Court has further held that a duty is cast on the Trial Court to examine whether the relief sought for is an ancillary relief to the main relief and that, if it is so, the plaintiff has to be charged only on the value of the main relief as mandated under Section 6 of the KCF & SV Act and further, the determination has to be arrived in the manner provided for, under the provision of the KCF & SV Act, the relief is required to be valued in that manner only. This Court while proceeding further, has interpreted the provisions of Section 38 of the KCF & SV Act and has observed in paragraph 13 that the provisions of Section 38 refers to the subject matter of the suit. In that view of the matter, it was incumbent upon the Trial Court to determine as to whether the expression “market value” referred to in the Plant refers to the market value of the property as on the date of presentation of the plaint or the value stated in the document which is before the Court. This Court has further placed reliance on the provisions of Section 7 of the KCF & SV Act which provides for determination of market value.
14. The KCF & SV Act provides for valuation of different reliefs under different provisions of the Act. Section 7 of the KCF & SV Act reads as under:
“7. Determination of market value.- (1) Save as otherwise provided, where the fee payable under this Act depends on the market value of any property, such value shall be determined as on the date of presentation of the plaint.
(2) The market value of land in suits falling under Sections 24(a), 24(b), 26(a), 27, 28, 29, 31, 35(1), 35(2), 35(3), 36, 38 , 39 or 45 shall be deemed to be, -
(a) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such an estate and is recorded in the Deputy Commissioner’s register as separately assessed with such revenue and such revenue is permanently settled – twenty-five times the revenue so payable;
(b) where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government, or forms part of such an estate and is recorded as aforesaid, and such revenue is settled, but not permanently– twenty and a half times the revenue so payable;
(c) where the land pays no such revenue, or has been partially exempted from such payment, or is charged with any fixed payment in lieu of such revenue,- fifteen times the net profits if any from the land during the year next before the date of presenting the plaint or thirty times the revenue payable on the same extent of similar land in the neighbourhood, whichever is lower;
(d) where the land forms part of an estate paying revenue to Government, but is not a definite share of such estate and is not separately assessed as above mentioned or the land is a garden or the land is a house site whether assessed to full revenue or not, or is land not falling within the foregoing description-the market value of the land.
Explanation.- The word “estate”, as used in this section means any land subject to the payment of revenue, for which the proprietor or farmer or raiyat shall have executed a separate engagement to Government, or which in the absence of such engagement shall have been separately assessed with revenue.”
15. From a bare reading of the aforesaid provision, it is apparent that the Court is required to independently determine the market value and it could not have arrived at the market value in the manner and methodology adopted by the Trial Court. The Trial Court was required to conduct a conscious exercise in terms of Section 7 of the KCF & SV Act and determine as to whether the market value has to be determined in terms of sub-section (1) or sub-section (2 ) of Section 7 of the KCF & SV Act. It is apparent that the KCF & SV Act applies to both urban and rural properties. Clause (a) of sub-section (2) provides that where the land forms an entire estate, or a definite share of an estate, paying annual revenue to Government and such revenue is permanently settled in terms of the Revenue Act, then the Court fee payable is fixed at 25 times the revenue so payable. Clause (b) of sub-section (2) refers to a land, in respect of which revenue is settled, but not permanently, then the Court fee payable is fixed at 12½ times the revenue so payable. Thus, the provisions of Section 7 of the KCF & SV Act provides for various types of properties and it was incumbent upon the respondent who has raised the question of inadequacy of court fee and jurisdiction, to demonstrate a case that the market value as required to be determined under Section 7, is of a higher valuation and is beyond the pecuniary jurisdiction of the Court as stipulated under Section 17 of the Karnataka Civil Courts Act, 1964.
16. Upon a bare reading of the impugned order, it is seen that the Trial Court has not conducted any inquiry as required and mandated under Section 7 of the KCF & SV Act. It is no more res integra that when a legislation provides for a particular act to be performed in a particular manner, then the same is required to be performed in the said manner only. In the instant case, admittedly the Trial Court has not conducted any exercise nor is there any material forthcoming to demonstrate the fact that the defendant, on whom the onus rests to demonstrate that the Court has no pecuniary jurisdiction or the court fee paid is insufficient, has failed to place any material in corroboration of his contentions. The reliance by the Trial Court on the body of the plaint without reference to the valuation slip is, in the considered opinion of the Court, vitiated by arbitrariness. In that view of the matter, the relief sought by the petitioners in this writ petition requires to be considered liberally.
17. Accordingly, the writ petition is allowed in part. The impugned order is set aside. The matter is remitted back to the Trial Court for consideration and disposal of the preliminary issues, keeping in mind the observations set forth herein above. The Trial Court shall afford an opportunity to the parties and shall consider and dispose of the preliminary issues in accordance with the provisions of the KCF & SV Act, 1958.
18. Since the main matter itself is disposed off, IA- 1/2017 does not survive for consideration and the same is accordingly disposed of.
Sd/- JUDGE KK