Smt Shuba vs Nanjamma @ Narasamma
2021 Latest Caselaw 1840 Kant

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  IN THE HIGH COURT OF KARNATAKA, BENGALURU

       DATED THIS THE 26TH DAY OF MARCH, 2021

                          BEFORE

       THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT

       WRIT PETITION NO.7120 OF 2014(GM-CPC)
BETWEEN:

SMT. SHUBA,
W/O RAMMOHAN,
AGED ABOUT 54 YEARS,
R/A NO.2395/6,
KUMARASAMY LAYOUT,
BANGALORE-78.
                                           ...PETITIONER
(BY SRI. G L VISHWANATH, ADVOCATE)

AND:

NANJAMMA @ NARASAMMA,
W/O KALAPPA, AGED MAJOR,
R/O UTTARI VILLAGE,
KAGGALIPURA POST,
UTTARAHALLI HOBLI,
BANGALORE SOUTH TALUK.
                                         ... RESPONDENT
(BY SRI. THIMMAPPA H, ADVOCATE)

NOTE: THE DEFENDANT NOS.1 & 2 VIZ., MUNIHANUMAIAH
AND M.L. RAMESH HAVE BEEN PLACED EXPARTE AND THEY
ARE NOT CONTESTING THE SUIT OR THE APPLICATION. THE
DEFENDANT NO.3 DIED DURING PENDENCY OF THE SUIT
AND HIS LRS ARE NOT BROUGHT ON RECORD.           HENCE
THEY HAVE NOT BEEN MADE PARTIES AS THEY AR NOT
NECESSARY FOR THE ADJUDICATION OF THE PETITION.
THE    DEFENDANT   NO.5    IS   THE   FATHER-IN-LAW   OF
PETITIONER.   HE IS AGED MORE THAN 92 YEARS.      HE IS
CONFINED TO THE BED.       HE HAS NO INTEREST IN THE
SCHEDULE PROPERTY. HENCE HE ALSO IS NOT MADE AS
PARTY TO THIS PETITION.
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      THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
QUASH     &/OR     SET   ASIDE     THE   IMPUGNED      ORDERS
DT.17.1.14 & 5.2.14 PASSED BY THE XXV ADDL. CITY CIVIL
JUDGE BANGALORE IN O.S.NO.7913/2001, VIDE ANN-F & J
& TO CONSEQUENTLY DIRECT THE PLAINTIFF TO PAY THE
COURT FEE ON THE MARKET VALUE OF THE SCHEDULE
PROPERTY.

      THIS PETITION COMING ON FOR FINAL HEARING THIS
DAY, THE COURT MADE THE FOLLOWING:-


                            ORDER

The tone for this judgment needs to be set by

reproducing Stanza 40 of the First Magna Carta of 1225,

which runs as under:

"To none shall we delay To none shall we deny, and To none shall we sell justice;"

('MAGNA CARTA AND ITS INFLUENCE IN THE WORLD TODAY' by Sir Ivor Jennings)

The pursuit of justice should be free of cost; this is a

laudable ideal; however, the pragmatics of legal battles

cost both the citizen & the State, is a reality; though ideally

speaking, access to justice should cost nothing to the

litigants, all civilized jurisdictions legislatively justify levy

of court fees; the States have enacted laws regulating the

suit valuation & payment of court fees, which are broadly

founded on the principle of quid pro quo; the Karnataka

Court Fee and Suits Valuation Act, 1958 is one such

legislation.

2. The suit in O.S.No.7913/2001 is for a decree of

declaration & specific performance; it is filed by the first

respondent Nanjamma; originally, there were only

defendant Nos. 1 & 2; however, subsequently defendant

Nos. 3 7 4 came to be impleaded as being the buyers

pendente lite.

3. Additional Issue No.2 came to be framed on the

basis of the Written Statements filed by the impleaded

defendants as to valuation & court fee qua the prayer for

the decree of possession introduced vide paragraphs 19A &

19C to the plaint vide amendment; this issue was treated

as a Preliminary Issue and answered in favour of the

plaintiff vide order dated 17.01.2014.

4. The petitioner had sought for review of the

above order dated 17.01.2014 by moving the application in

IA No.29 under Order XLVII Rule 1 of CPC, 1908; the

learned 25th Additional City Civil Judge, Bengaluru, vide

order 05.02.2014 has rejected the said application;

aggrieved by these two orders, the petitioner is knocking

at the doors of the Writ Court essentially arguing that the

prayer for possession not being incidental to a decree for

specific performance, attracts levy of additional court fee.

5. After service of notice, the respondent-plaintiff

having entered appearance through his counsel, resists the

writ petition making submission in justification of the

impugned orders and the reasons on which they have been

constructed; he contends that the prayer for a decree of

possession in a suit for specific performance or a

declaration as to the validity of a conveyance is only

incidental and therefore, the question of paying additional

court fee thereon does not arise; so contending, he seeks

dismissal of the writ petition.

6. Having heard the learned counsel for the

parties and having perused the petition papers, this Court

declines to grant indulgence in the matter for the following

reasons:

a) As already mentioned above, the suit was

originally filed inter alia for a decree of specific performance

of an agreement to sell dated 06.06.1991; the subject

matter of the suit was valued under Section 40 of 1958

Act, which prescribes same computation whether the

possession is prayed for or not; merely because, the

plaintiff has amended the plaint for introducing a prayer

for possession on the basis of the facts that happened

pendente lite i.e., the petitioner buying the subject property

vide sale deed dated 07.11.2001, he cannot be saddled

with additional court fee; the text & context of Section 40

do not echo anything to the contra.

b) The vehement contention of learned counsel for

the petitioner that the prayer for a decree of possession

being superadded pendente lite, attracts levy of additional

fee is not supported by the Apex Court decision in

BABULAL Vs. M/S. HAJARI LAL KISHORI LAL, AIR 1982

SC 818; the question debated before this Court did not fall

for consideration even in the penumbra the said case

which discussed only about the intent & scope of

amendment of the provisions of the Specific Relief Act,

1963, in the light of Law Commission recommendations; it

hardly needs to be recalled what Lord Hallsbury more

than a century ago said in Quinn Vs. Leathem (1901)

A.C. 495, 506, that a decision is an authority for the

proposition that it actually lays down and not for all that,

which logically follows from what has been so laid down.

c) The essential question whether a prayer for a

decree of possession is incidental to prayer for a decree for

specific performance does not need much elaboration, for

finding an answer; the answer has to be in the affirmative,

not even one single decision of any court to the contra

having been cited at the Bar; this apart, whether it is

affirmative or not, the legislative policy enacted in Section

40 of the 1958 Act is as clear as can be; it prescribes same

type of valuation & court fee in a suit for specific

performance, whether or not the prayer for possession is

made; litigants at times, make multiple prayers, lest the

relief should be denied on the technical ground of absence

of prayer; what the Court has to see is the dominant

nature of the suit and in doing that the linguistic tactics

that may be employed in the pleadings have to be kept at a

bay; there is nothing repugnant to this view in what has

been stated in the Apex Court decision supra or in the

decision of the Co-ordinate Bench in S RAMAIAH Vs. K

RAMESH RAO, (2014) 6 KLJ 320.

In the above circumstances, this petition being

devoid of merits, is liable to be dismissed and accordingly

it is, costs having been made easy.

Learned judge of the Court below is requested to try

& dispose off the suit expeditiously and in any

circumstance, before the end of this year, all contentions of

the parties having been kept open.

Sd/-

JUDGE

Bsv