Karnataka High Court
Rudragouda And Ors vs Gurubai on 27 June, 2024
-1-
NC: 2024:KHC-K:4365
WP No.201161 of 2024
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
WRIT PETITION NO.201161 OF 2024 (GM-CPC)
BETWEEN:
1. RUDRAGOUDA
S/O GOLLALLAPPA,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O MAGANAGERA VILLAGE,
TQ: YADRAMI, DIST: KALABURAGI.
2. SMT. KASHIBAI
W/O RUDRAGOUDA BIRADAR,
AGE: 47 YEAR, OCC: HOUSEHOLD,
R/O KELLUR VILLAGE,
TQ: JEWARGI, DIST: KALABURAGI-585101.
Digitally signed 3. SMT. NEELGANGA D/O RUDRAGOUDA
by RENUKA W/O NITYANAND,
Location: High AGE: 28 YEARS, OCC: HOUSEHOLD,
Court Of
Karnataka 4. NINGANNAGOUDA
S/O RUDRAGOUDA BIRADAR,
AGE: 23 YEARS, OCC: AGRICULTURE,
R/O MAGANAGERA VILLAGE,
TQ: YADRAMI, DIST: KALABURAGI.
5. KUMAR ASHOK
S/O RUDRAGOUDA BIRADAR,
AGE: 17 YEARS, R/O MAGANAGERA VILLAGE ,
TQ: YADRAMI, DIST: KALABURAGI.
-2-
NC: 2024:KHC-K:4365
WP No.201161 of 2024
6. KUMAR RAGHAVENDRA
S/O RUDRAGOUDA BIRADAR,
AGE: 15 YEARS, R/O MAGANAGERA VILLAGE,
TQ: YADRAMI, DIST: KALABURAGI.
THE PETITIONERS NO.5 AND 6 ARE MINOR
U/G FATHER PETITIONER NO.1
...PETITIONERS
(BY SRI SANJEEVKUMAR C. PATIL, ADVOCATE)
AND:
1. SMT. GURUBAI
D/O SHARANAPPA BIRADAR,
W/O BAGAVANTHRAYA DESAI,
AGE: 69 YEARS, OCC: HOUSEHOLD,
R/O KELLUR VILLAGE, TQ: JEWARGI,
DIST: KALABURAGI-585101.
2. SMT. KASTURBAI
D/O SHARANAPPA BIRADAR,
AGE: 70 YEARS, OCC: HOUSEHOLD,
R/O MAGANGERA, TQ: JEWARGI,
DIST KALABURAGI 585101.
3. SMT. SHIVALINGAMMA
D/O SHARANAPPA BIRADAR,
W/O DODDAPPAGOUDA,
AGE: 73 YEARS, R/O KACHAPUR,
TQ: SHORAPUR, DIST: YADGIR-585101.
4. SMT. LALITABAI D/O GOLLALLAPPA
W/O DADAGOUDA,
AGE: 58 YEARS, OCC: HOUSEHOLD,
R/O DATTANAGAR, KALABURAGI,
DIST: KALABURAGI-585101.
5. SMT. BORAMMA D/O GOLLALLAPPA
W/O DADAGOUDA PATIL,
-3-
NC: 2024:KHC-K:4365
WP No.201161 of 2024
AGE: 55 YEARS, OCC: HOUSEHOLD,
R/O MALGHAN VILLAGE,
TQ: SINDAGI, DIST: KALABURAGI-585101.
6. KUMAR ABHISHEK
S/O RUDRAGOUDA BIRADAR,
AGE: 19 YEARS, R/O MAGANAGERA VILLAGE,
TQ: YADRAMI, DIST: KALABURAGI-585101.
7. SHARANAGOUDA
S/O GOLLALLAPPA BIRADAR,
AGE: 51 YEARS, OCC: HOUSEHOLD,
R/O MAGANAGERA VILLAGE,
TQ: YADRAMI, DIST: KALABURAGI-585101.
8. SMT. AKSHATA
W/O SHARANAPPA BIRADAR,
AGE: 48 YEARS, OCC: HOUSEHOLD,
R/O MAGANAGERA VILLAGE,
TQ: YADRAMI, DIST: KALABURAGI-585101.
...RESPONDENTS
(BY SRI B. BHIMASHANKAR, ADVOCATE FOR R1;
V/O DT.27/06/2024, NOTICE TO R2 TO R8 DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT,
DIRECTION OR ORDER IN THE NATURE OF CERTIORARI BY
QUASHING ANNEXURE-D ORDER DATED 12-02-2024, PASSED
BY THE SENIOR CIVIL JUDGE AND JMFC, JEWARGI, IN OS
NO.86/2021. FURTHER DIRECT THE PLAINTIFF TO PAY COURT
FEE AS PER SECTION 35(1) OF KARNATAKA COURT FEE AND
SUIT VALUATION ACT, 1960. ISSUE A WRIT, DIRECTION OR
ORDER WHICH DEEM FIT UNDER THE FACTS AND
CIRCUMSTANCES OF THE CASE.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
-4-
NC: 2024:KHC-K:4365
WP No.201161 of 2024
ORDER
The defendant Nos.5 to 8, 10 and 11 in O.S.No.86/2021 on the file of the Senior Civil Judge and JMFC at Jewargi have filed this petition challenging an order dated 12.02.2024 in terms of which, the Trial Court answered preliminary issue No.4 against defendant Nos.3 to 13.
2. A suit in O.S.No.86/2021 was filed for partition and separate possession of agricultural lands situate at Magangera village, Yadrami Taluka. The suit for the purpose of jurisdiction was valued at a sum of Rs.2,58,000/- to Rs.3,10,000/- per acre. For the purpose of Court fee, it was valued under Section 35(2) of the Karnataka Court Fees and Suits Valuation Act, 1958 (for short 'the Act of 1958') and Court fee of Rs.200/- was paid thereon.
3. The defendants contested the suit and denied the relationship between the plaintiff and defendants. They also denied that the plaintiff was in joint possession -5- NC: 2024:KHC-K:4365 WP No.201161 of 2024 of the suit properties and thus contended that the Court fee paid on the suit was inadequate and the plaintiff was bound to pay Court fee under Section 35(2) of the Act of 1958. The Trial Court framed issues, one of which was, whether the defendant Nos.3 to 13, further proves that suit is not properly valued and court fee paid is insufficient? The Trial Court after recording the evidence of defendant Nos.3 to 13 who marked Exs.D.1 and D.2, held that the suit was properly valued and the Court fee paid thereon was just and satisfied. Being aggrieved by the said order, the defendant Nos.5 to 8, 10 and 11 are before this Court.
4. Learned counsel for the defendants contended that in view of the judgment of the full Bench of this Court in the case of Venkatesh R. Desai V. Smt. Pushpa Hosmani and others reported in AIR 2019 Karnataka 47, the question whether the Court fee paid on a suit could be tried as a preliminary issue or not was answered and held that unless the issue regarding the Court fee -6- NC: 2024:KHC-K:4365 WP No.201161 of 2024 relates to jurisdiction of the Court, the same cannot be treated as a preliminary issue. He therefore, submits that the impugned order be set aside and the Trial Court be directed to dispose of all the issues including the preliminary issue on merits.
5. Learned counsel for the plaintiff on the other hand contended that the defendants having requested the Court to treat the issue regarding the Court fee as a preliminary issue and wasting judicial time in adducing evidence on the said issue, they cannot claim that the preliminary issue should be tried along with the other issues.
6. I have considered the submissions made by the learned counsel for the petitioners and the learned counsel for the respondents.
7. The issue regarding the Court fee payable on a suit for partition is a mixed question of fact and law. Since the plaintiff had asserted that she was in joint possession of the suit property, the valuation of the suit under Section -7- NC: 2024:KHC-K:4365 WP No.201161 of 2024 35 of the Act of 1958 appears to be just and proper. Be that as it may, since the defendants had contested the claim that the plaintiff was in joint possession of the property, that being a question of fact could not be tried as a preliminary issue. It must have been tried along with the other issues. Therefore, the request of the defendants to treat issue regarding sufficiency of Court fee as a preliminary issue itself was misconceived. Since the defendants had compelled the Court to treat the issue regarding the Court fee as a preliminary issue and had adduced evidence thereby expending judicial time, it is appropriate to dispose off the writ petition by setting aside the order passed by the Trial Court and at the same time, imposing cost on the defendant Nos.3 to 13 for compelling the Court to spend judicial time to treat and adjudicate the issue regarding the Court fee as preliminary issue. This would meet ends of justice. Hence, the following ORDER
(i) The Writ Petition is allowed in part. -8-
NC: 2024:KHC-K:4365 WP No.201161 of 2024
(ii) The impugned order passed by the Trial Court in answering the preliminary issue against the defendant Nos.3 to 13 is set aside and the Trial Court is directed to consider the issue regarding the Court fee along with the other issues. This is however subject to the defendant Nos.3 to 13 paying cost of Rs.10,000/- payable to the District Legal Services Authority, Kalaburagi within a period of one week from today.
(iii) If records of the Trial Court are received in this Court, the registry is directed to re-transmit the records to the Trial Court.
Sd/-
JUDGE RSP CT:SI List No.: 1 Sl No.: 15