Sri. M Krishnappa @ ... vs Smt. Jayamma
2022 Latest Caselaw 286 Kant

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 7TH DAY OF JANUARY 2022

                         BEFORE

       THE HON'BLE MR. JUSTICE ASHOK.S.KINAGI


          W.P. NO.23187 OF 2018 (GM-CPC)
BETWEEN:

Sri. M. Krishnappa @
Hotteppanavara Krishnappa,
aged about 59 years,
S/o Late Appaiah @ Munivekatappa,
R/at Maralakunte Village,
Bagaluru Post, Jala Hobli,
Bengaluru North Taluk,
Bengaluru-562 149.
                                        ...Petitioner
(By Sri. C.M. Nagabhushana, Advocate)


AND:

1.     Smt. Jayamma,
       aged about 56 years,
       W/o Muniyappa,
       R/at Mahadeva Kodigehalli,
       Jala Hobli,
       Bengaluru North Taluk,
       Bengaluru-562 149.

2.     Sri. Thimmaiah,
       aged about 71 years,
       S/o Akalappa,
       R/at Maralakunte Village,
                                 2




        Bagaluru Post,
        Jala Hobli,
        Bengaluru North Taluk,
        Bengaluru-562 149.
                                         ...Respondents
(By Sri. V. Vijayashekara Gowda, Advocate for R1;
    Sri. A.C. Balaraj, Advocate for R2)

       This Writ Petition is filed under Article 227 of the
Constitution of India, praying to quash the order dated
21.04.2018 passed in O.S.No.659/2012 on I.A.No.V on
the file of Senior Civil Judge at Devanahalli at Annexure
- F.

     This Writ Petition coming on for Preliminary
Hearing, this day, the Court made the following:


                            ORDER

The petitioner being aggrieved by the order on

Issue No.5 dated 21.04.2018 passed in

O.S.No.659/2012 by the Senior Civil Judge and JMFC,

Devanahalli filed this writ petition.

2. The brief facts leading to filing of the petition

is as under:-

The first respondent filed a suit in

O.S.No.659/2012 for the relief of partition and separate

possession against the petitioner and respondent No.2.

The petitioner appeared and filed written statement.

Thereafter, the trial Court has framed issues and

considered issue No.5 as preliminary issue and passed

an order answering issue No.5 in the 'Negative' holding

that the valuation of the suit and payment of Court fee

is correct and sufficient. Hence, the petitioner aggrieved

by the said order passed by the trial Court has filed this

petition.

3. Heard the learned counsel for the petitioner

and also learned counsel for respondents.

4. Learned counsel for petitioner submits that

the trial court has committed an error in treating issue

No.5 as preliminary issue. He further submits that in

view of the law laid down by Hon'ble Full Bench of this

Court in the case of VENKATESH R.D VS. PUSPA

HOSMANI reported in ILR 2018 KAR the trial Court

ought to have considered the issue No.5 along with

other issues. Hence, the trial Court has committed an

error in treating issue No.5 as preliminary issue. Hence,

on these grounds, prays to allow the writ petition.

5. Per contra, learned counsel for respondent

No.1 - Plaintiff concedes to the principle laid down by

the Full Bench of this court in the aforesaid judgment.

6. Respondent No.1 had filed a suit for partition

and separate possession against the petitioner and

respondent No.2. Further, the respondent No.1 has

pleaded in the plaint that the petitioner and first

respondent are in joint possession of the suit schedule

property and further respondent No.1 has valued the

suit for the purpose of Court fee and jurisdiction under

Section 35(2) of Karnataka Suit Valuation and Court Fee

Act.

7. The petitioner filed written statement

contending that the petitioner has sold the property in

favour of second respondent. Respondent No.1 and

petitioner are not in joint possession of the property

with second respondent, who is in possession of the

property. The respondent No.1 ought to have valued

the suit under Section 35(1) of Karnataka Court Fee and

Suit Valuation Act. The trial Court without recording the

evidence in the suit has proceeded to pass the impugned

order.

8. Insofar as issue relating to Court fee is

concerned, the Full Bench of this Court in the case of

Venkatesh R.Desai, this Court has held that by virtue of

Section 11 of the Karnataka Court Fees and Suits

Valuation Act, 1958, when an issue of valuation and

court fees is raised in a suit on the objections of the

defendants, the same is invariably required to be tried

alongwith on other issues. But cannot be tried as a

preliminary issue. In the present case, it is not the case

of the petitioner that the trial Court has no jurisdiction

to entertain the suit. It is the contention of the

defendant - Petitioner, the valuation made by

respondent No.1 is in correct. So far in respect of Court

Fee is concerned as per the Full Bench decision of this

Court it is to be treated along with other issues. The

trial Court has committed an error treating issue No.5 as

preliminary issue.

With the above discussions, I pass the following:

ORDER

i. The writ petition is allowed.

ii. The impugned order is set aside.

The trial Court is directed to consider issue No.5 along with other issues and pass appropriate order in accordance with law.

Sd/-

JUDGE

AG