IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 10TH DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR. JUSTICE G.NARENDAR CIVIL REVISION PETITION NO.384/2014 BETWEEN VINAYAGA CHETTIAR AGED ABOUT 54 YEARS, S/O LATE RATHINVELU CHETTIAR, RESIDING AT NO.9, SY NO.527/2, 1ST B CROSS, ANNAYA REDDY LAYOUT, DODDA BANASWADI, NEAR GANESH TEMPLE, BANGALORE. ... PETITIONER (BY SRI. S V GIRIDHAR, ADVOCATE) AND SMT. SAROJINIAMMAL D/O LATE RATHINAVELU CHETTIAR, AGED ABOUT 64 YEARS, RESIDENT OF PONDICHERY, PRESENTLY RESIDING AT NO.28, 2ND CROSS, MUNITHAYAPPA LAYOUT, LINGARAJAPURAM, BANGALORE-84. ... RESPONDENT (BY SRI. V A MOHAN RANGAM, ADVOCATE.) THIS CRP IS FILED UNDER SEC.115 OF CPC., AGAINST THE ORDER DATED 20.09.2014 PASSED IN IA ON O.S NO.26179/2010 ON THE FILE OF THE XXVIII ADDL. CITY CIVIL JUDGE, BENGALURU (CCH 20), DISMISSING THE APPLICATION FILED U/O VII RULE 11 R/W SEC.151 OF CPC., FOR NON PAYMENT OF SUFFICIENT COURT FEE.
THIS CRP COMING ON FOR ‘ADMISSION’ THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Heard the learned counsel for the petitioner.
2. The petitioner is the 10th defendant before the trial court being aggrieved by the order passed by the trial court on the Interim Application preferred under Order VII Rule 11 read with Section 151 of the Code of Civil Procedure, 1908 praying for rejection of plaint for non- payment of sufficient court fee.
3. It is contended by the learned counsel for the petitioner that the applicant/defendant No.10 has categorically asserted that the plaintiff has sued the defendants for partition and separate possession of her 1/4th share in suit schedule A, B, C and D properties and that schedule ‘A’ property was sold prior to filing of the suit i.e. way back on 29.03.2007 and the suit is filed on 29.10.2010, i.e. after four years of sale of schedule ‘A’ property. And that the schedule ‘A’ property was sold for a sale consideration of Rs.51,49,000/- and on the date of suit the value of the schedule ‘A’ property was Rs.69,82,500/- and that the property was sold to the 11th defendant. The 11th defendant is in possession thereof and further it is contended that the value of the ‘B’ schedule property is also above Rs.20,00,000/- and is owned by one Smt. Theanmozhi, that the value of the schedule ‘C’ property on the date of suit is Rs.18,00,000/- is not a joint family property and that the ‘D’ schedule property is situated in Chennai and it is his absolute property that he is in possession and enjoyment of the properties since 1992. That the value of the ‘D’ schedule property is about Rs.50,00,000/- as on the date of institution of the suit. That the plaintiff is not in possession of schedule properties and the valuation of the suit under the provisions of Section 35 (1) of the Karnataka Court Fee and Suits Valuation Act, 1958 is improper and court fee paid thereon is insufficient.
4. It is contended that the court fee paid is insufficient and that the plaintiff is liable to pay the deficit court fee of Rs.2,76,037/- and it is further contended that the court fee has to be calculated in terms of provision of Sub-Section 2 of Section 35 of the Karnataka Court Fee and Suits Valuation Act.
5. The trial court after appreciation of the various contentions has been pleased to reject the application. The trial court while rejecting the application has noted that the present application came to be filed at the stage when the suit was set for cross-examination of PW1 and that no reasons are forthcoming as to why the application has been moved at this belated stage. It has also noted that an issue regarding sufficiency of the court fee paid has also been framed and it is always open for the applicant/defendant to have adjudicated the said issue in his defence as well as in the cross-examination of PW1. Further, it has held that as per the guidelines laid down by the Hon’ble Apex Court, the trial court is required only to look into the pleadings in the plaint. No other material can be relied upon while adjudicating the application under Order VII Rule 11.
6. The learned counsel for the petitioner would contend that the trial court ought to have looked into the issue of sufficiency of court fee paid and ought to have treated the same as a “Preliminary Issue”. The said contention cannot be countenanced in the light of the fact that the petitioner has not made any efforts nor preferred any application praying for treating and considering the said issue as “Preliminary Issue”.
7. It is also relevant to note that the petitioner/defendant is seeking consideration of facts canvassed by him in the written statement with regard to the valuation of the properties. Be that as it may, the valuation of the properties and the sufficiency of the court fee is a mixed question of fact and law and has to be adjudicated after trial. It is not in dispute that the trial court has not passed any order adjudicating the court fee nor any direction is issued by the court determining and directing the fee payable. Further the Hon’ble Apex Court in the case of Bhauram vs. Janak Singh & Others reported in AIR (2012) 8 SCC 701, has laid down the law in this regard and it is no more res-integra. The Hon’ble Apex Court has categorically held that while considering an application under Order VII Rule 11, the courts are required to look into the plaint pleadings alone.
In the light of the law laid down by the Hon’ble Apex Court, the reasoning accorded by the trial court does not suffer from any illegal or infirmity or error and the well reasoned order by the trial court does not call for any interference and accordingly, the revision petition is rejected.
CT-HR Chs* Sd/- JUDGE