Karnataka High Court
Sri B T Yashwanth vs Sri S Ravi Kumar on 18 January, 2022
Bench: Ashok S.Kinagi
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE ASHOK.S.KINAGI
WRIT PETITION NO. 7109 OF 2021 (GM-CPC)
BETWEEN:
SRI. B.T. YASHWANTH
SON OF LATE B. THIMMAIAH
AGED ABOUT 66 YEARS,
RESIDING AT NO.443,
8TH MAIN ROAD, 1ST BLOCK,
KALYAN NAGAR, BANGALORE - 560043.
(SENIOR NOT CLAIMED CITIZEN)
...PETITIONER
(BY SMT. IRFANA NAZEER, ADVOCATE)
AND:
1. SRI. S. RAVI KUMAR
SON OF V. SHAMANNA
AGED ABOUT 40 YEARS
RESIDING AT HULIMAVU,
BANNERGHATTA ROAD,
BANGALORE - 560 076.
2. SRI. C. RAMESH
SON OF LATE CHOWDAPPA
AGED ABOUT 55 YEARS
RESIDING AT NO.153,
CHOWDESHWARI NILAYA,
6TH CROSS, JANATHA COLONY,
HULIMAVU, B.G.ROAD,
BANGALORE - 560 076.
... RESPONDENTS
(BY SRI. JEEVAN K., ADVOCATE)
2
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
IMPUGNED ORDER DTD. 10.03.2021 PASSED BY THE 26TH
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE
(MAYO HALL) IN O.S.NO.26528/2020 PRODUCED AT
ANNEXURE-D AND ETC.
THIS WRIT PETITION COMING ON FOR 'ORDERS' THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioner being aggrieved by the order dated
10.03.2021 passed in O.S.No.26528/2020 by the XXVI
Additiional City Civil and Sessions Judge, Bengaluru has
filed this petition.
2. Brief facts leading to filing of this writ petition
are that:
The petitioner has filed a suit in O.S.No.26528/2020
for declaration and injunction. In the said suit the
respondents appeared and filed the written statement by
contending that the valuation made by the petitioner is not
correct and the Court fee paid is insufficient. The Trial
Court after going through the pleading, framed the issues
and the Trial Court treated Issue No.7 as a preliminary
issue. It is further submitted that the petitioner has also
filed an application for appointment of a Court
Commissioner to ascertain the actual boundaries of the
suit schedule property as the said property was claimed by
the respondent; to ascertain the Survey Number in which
the suit schedule property is located and to draw layout
plan to ascertain the correct location of the suit schedule
property and the property claimed by the respondents as
well as in relation with the others by conducting local
inspection. The Trial Court without recording the evidence
on Issue No.7 has answered Issue No.7 in affirmative
holding that the Court fee paid by the petitioner is
insufficient and further directed the petitioner to file a
fresh valuation slip by calculating the Court fee under
Section 26(a) of the Karnataka Court Fees and Suits
Valuation Act, 1958 (hereinafter referred to as the 'Act' for
short) and to pay the deficit Court fee on or before
15.03.2021, and further observed that there is a direction
for disposal of suit by this Court. Hence, if the petitioner
fails to pay the deficit Court fee by filing a fresh valuation
slip, it is ordered that Issue No.1 held in the case shall
stand struck off as per Section 12 of the Act and the
matter shall be proceeded with for trial in respect of the
remaining issues. However, insofar as I.A.No.4 is
concerned it was dismissed and the liberty was reserved to
the petitioner to file fresh application after conclusion of
evidence on both sides. The petitioner being aggrieved by
the same, has filed this Writ Petition.
3. Heard the learned counsel for the petitioner.
4. Learned counsel for the petitioner submits that
Issue No.7 is concerned with regard to the payment of
Court fee, it is a question of law and fact which requires
evidence. The Trial Court without recording the evidence
on Issue No.7 has proceeded to pass an impugned order.
Further the learned counsel for the petitioner places
reliance on the full Bench judgment of this Court in the
case of Venkatesh R Desai vs. Smt.Pushpa Hosmani
and others reported in ILR 2018 KAR 5095. She further
submits that the issue with regard to Court fee has to be
heard along with other issues. She further submits that
the Trial Court has Committed an error in treating Issue
No.7 as a preliminary issue. Hence, on these grounds, she
prayed to allow the Writ Petition.
5. Per contra, learned HCGP supports the
impugned order.
6. Heard and perused the records and considered
the submissions of the learned counsel for the parties.
7. The petitioner has filed a suit for declaration
and injunction against respondent Nos.1 and 2, and for
declaration that the sale deed executed by respondent
No.2 in favour of respondent No.1 is void and not binding
on the petitioner and the said sale deed does not pertain
to the suit schedule property. The petitioner has valued
the suit under Section 24(d) of the Act. The respondents
have taken a specific contention that the suit valued by the
petitioner is incorrect and the Court fee paid is insufficient.
The Trial Court has framed an issue and treated Issue No.7
as a preliminary issue and answered Issue No.7 in
affirmative holding that the Court fee paid by the petitioner
is insufficient. Hence, insofar as the payment of Court fee
is concerned, an objection was raised by the respondents,
the same is not invariably required to be tried as a
preliminary issue. Before taking an evidence on other
issue the Court has to try the preliminary issue, if it relates
to the jurisdiction. It is not the case of the respondents
that the Trial Court has no jurisdiction to entertain the suit
filed by the petitioner. The contention of the respondent is
that the petitioner has not valued the suit properly and
Court fee paid is insufficient. In view of the law laid down
by the full Bench judgment of this Court in the case of
Venkatesh R Desai (supra), wherein this Court has held
that the issue in regard to valuation and/or Court fees is
raised in a civil suit on the objection of the defendant, the
same is not invariably required to be filed as a preliminary
issue and before taking evidence on other issues; but
could be filed as a preliminary issue if it relates to
jurisdiction. In the present case there is no dispute in
regard to jurisdiction. The Trial Court has committed an
error in treating Issue No.7 as a preliminary issue.
8. In view of the above discussion, the Writ
Petition is allowed. The impugned order passed by the
Trial Court is set aside. The Trial Court is directed to
consider Issue No.7 along with other issues and pass
appropriate judgment and decree. The Trial Court has
directed to dispose of the suit as expeditiously as possible.
9. In view of disposal of this appeal,
I.A.No.2/2021 does not survive for consideration.
Sd/-
JUDGE
GJM
