Karnataka High Court
K V Chandrashekara vs Sri S L Mohan on 4 July, 2022
Bench: Sachin Shankar Magadum
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 12663 OF 2022 (GM-CPC)
BETWEEN:
K V CHANDRASHEKARA
S/O LATE R VEERANNA
AGED ABOUT 58 YEARS,
NO.296
KAMAKSHIPALYA
MAGADI MAIN ROAD
BANGALORE-560 079
...PETITIONER
(BY SRI.R.VENKATARAMANI, SENIOR ADVOCATE FOR
PAWAN SHYAM.A)
AND
1. SRI S L MOHAN
S/O LATE S K LAKSHMINARASAPPA
LEGAL REPRESENTATIVES OF SRI
LAKSHMINARASAPPA AND ARE
R/AT NO.84 12TH MAIN
SHIVANAGAR
(SHIVANAHALLI)
RAJAJINAGR
BANGALORE-560 010
2. SRI S L VIJAYA KUMAR
S/O LATE S K LAKSHMINARASAPPA
2
LEGAL REPRESENTATIVES OF SRI
LAKSHMINARASAPPA AND ARE
R/AT NO.84 12TH MAIN
SHIVANAGAR
(SHIVANAHALLI)
RAJAJINAGR
BANGALORE-560 010
3. SMT S L UMADEVI
D/O LT S K LAKSHMINARASAPPA
LEGAL REPRESENTATIVES OF SRI
LAKSHMINARASAPPA AND ARE
R/AT NO.84 12TH MAIN
SHIVANAGAR
(SHIVANAHALLI)
RAJAJINAGR
BANGALORE-560 010
4. S L HARISHA
S/O LATE S K LAKSHMINARASAPPA
LEGAL REPRESENTATIVES OF SRI
LAKSHMINARASAPPA AND ARE
R/AT NO.84 12TH MAIN
SHIVANAGAR
(SHIVANAHALLI)
RAJAJINAGR
BANGALORE-560 010
5. SMT S L LATHA
D/O LATE S K LAKSHMINARASAPPA
LEGAL REPRESENTATIVES OF SRI
LAKSHMINARASAPPA AND ARE
R/AT NO.84 12TH MAIN
SHIVANAGAR
(SHIVANAHALLI)
RAJAJINAGR
BANGALORE-560 010
6. SRI S L KISHORE
S/O LT S K LAKSHMINARASAPPA
3
LEGAL REPRESENTATIVES OF SRI
LAKSHMINARASAPPA AND ARE
R/AT NO.84 12TH MAIN
SHIVANAGAR
(SHIVANAHALLI)
RAJAJINAGR
BANGALORE-560 010
7. SMT MITRAVINDA P
W/O LATE S N PRAHALADA RAO
LEGAL REPRESENTATIVES OF SRI PRAHLADA RAO
AND ARE R/AT NO.84 12TH MAIN
SHIVANAGAR
(SHIVANAHALLI)
RAJAJINAGR
BANGALORE-560 010
8. SMT SUDHA
W/O LATE S N PRAHALADA RAO
LEGAL REPRESENTATIVES OF SRI PRAHLADA RAO
AND ARE R/AT NO.84 12TH MAIN
SHIVANAGAR
(SHIVANAHALLI)
RAJAJINAGR
BANGALORE-560 010
9. SMT SUMITHRA
D/O LATE S N PRAHALADA RAO
LEGAL REPRESENTATIVES OF SRI PRAHLADA RAO
AND ARE R/AT NO.84 12TH MAIN
SHIVANAGAR
(SHIVANAHALLI)
RAJAJINAGR
BANGALORE-560 010
10. SMT VASANTHI
D/O LATE S N PRAHALADA RAO
LEGAL REPRESENTATIVES OF SRI PRAHLADA RAO
AND ARE R/AT NO.84 12TH MAIN
4
SHIVANAGAR
(SHIVANAHALLI)
RAJAJINAGR
BANGALORE-560 010
11. SMT VIJAYALKSHMI
D/O LATE S N PRAHALADA RAO
LEGAL REPRESENTATIVES OF SRI PRAHLADA RAO
AND ARE R/AT NO.84 12TH MAIN
SHIVANAGAR
(SHIVANAHALLI)
RAJAJINAGR
BANGALORE-560 010
12. SMT BHARATHI
D/O LATE S N PRAHALADA RAO
LEGAL REPRESENTATIVES OF SRI PRAHLADA RAO
AND ARE R/AT NO.84 12TH MAIN
SHIVANAGAR
(SHIVANAHALLI)
RAJAJINAGR
BANGALORE-560 010
13. SRI MADWESH
S/O LATE S N PRAHALADA RAO
LEGAL REPRESENTATIVES OF SRI PRAHLADA RAO
AND ARE R/AT NO.84 12TH MAIN
SHIVANAGAR
(SHIVANAHALLI)
RAJAJINAGR
BANGALORE-560 010
14. SRI VADIRAJA
S/O LATE S N PRAHALADA RAO
LEGAL REPRESENTATIVES OF SRI PRAHLADA RAO
AND ARE R/AT NO.84 12TH MAIN
SHIVANAGAR
(SHIVANAHALLI)
RAJAJINAGAR
5
BANGALORE-560 010
15. SMT SAVITHRI
D/O LATE S N PRAHALADA RAO
LEGAL REPRESENTATIVES OF SRI PRAHLADA RAO
AND ARE R/AT NO.84 12TH MAIN
SHIVANAGAR
(SHIVANAHALLI)
RAJAJINAGR
BANGALORE-560 010
...RESPONDENTS
(BY SRI.N.SHANKARANARAYANA BHAT, ADVOCATE FOR
C/R 1,3 AND 6)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR
THE RECORD OF THE CASE IN INTERLOCUTORY
APPLICATION NO.1 OF 2021 FILED BY THE PETITIONER
HEREIN DTD 12.11.2021 IN FINAL DECREE PROCEEDING
NO.122/2012 ON THE FILE OF THE LEARNED II
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BANGALORE (CCH-17), AND TO ALLOW THE SAID
APPLICATION (I.A.NO.1/2021 DTD 12.11.2021 FILED BY
THE PETITIONER HEREIN) VIDE ANNX-B BY STRIKING
DOWN THE ORDER PASSED BY THE LEARNED II
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE,
BANGALORE (CCH-17), ON 05.04.2022 DISMISSING THE
INTERLOCUTORY APPLICATION NO.1 OF 2021, DTD
12.11.2021 FILED BY THE PETITIONER HEREIN IN
F.D.P.NO.122/2012 VIDE ANNX-F, IN ORDER TO PREVENT
A GRAVE MISCARRIAGE AND FAILURE OF JUSTICE AND
ETC.,
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING THIS DAY, THE COURT MADE THE FOLLOWING:
6
ORDER
The captioned writ petition is filed by defendant
No.6 questioning the order dated 05.04.2022 passed
by the learned II Additional City Civil and Sessions
Judge, Bengaluru on I.A.No.1/2021 filed under Section
4 of the Karnataka Court Fees and Suits Valuation Act,
1958 read with Section 35(1) thereof and Section 151
of CPC, 1908 in FDP.No.122/2012, as per Annexure-F.
2. The respondents/plaintiffs have instituted a
suit for partition and separate possession in
O.S.No.10311/1983 seeking partition by metes and
bounds. The present petitioner, who claims to be a
purchaser, was arrayed as defendant No.6. The
present petitioner on receipt of summons, tendered
appearance and contested the proceedings and stoutly
denied the entire averments made in the plaint. The
petitioner specifically contended that
respondents/plaintiffs are not in joint possession and
therefore, claimed that suit ought to have been valued
under Section 35(1) of the Karnataka Court Fees and
Suits Valuation Act, 1958 (for short 'the Act'). Based
on rival contentions, the Trial Curt framed issue No.5
which deals with the present controversy. Under issue
No.5, the Court formulated the issue indicating as to
whether the plaintiffs have properly valued for the
purpose of court fees.
3. After conclusion of trial, though the Trial Court
proceeded to dismiss the suit but however, issue No.5
was answered in affirmative and a finding was
recorded that court fee paid was proper. Feeling
aggrieved by the judgment and decree passed by the
Trial Court, the plaintiffs' preferred two appeals in
RFA.No.271/1998 and RFA.No.275/1998. The Division
Bench of this Court, on re-appreciation of entire ocular
and documentary evidence and after having
independently assessed the materials placed on
record, has reversed the decree passed in
O.S.No.10311/1983. Consequently, this Court decreed
the suit granting share to the respondents/plaintiffs.
While allowing the appeal, the Division Bench of this
Court has recorded a categorical finding that
respondents/plaintiffs are in joint possession. The
common judgment rendered by the Division Bench of
this Court in RFA.No.271/1998 and RFA.No.275/1998,
are questioned by the present petitioner herein and
the same is pending in Civil Appeal.No.7816-17/2012
before the Hon'ble Apex Court.
4. Pending consideration of the judgments
rendered by this Court, the respondents/plaintiffs
have initiated a Final Decree Proceeding in
FDP.No.122/2012. In the Final Decree Proceeding, the
present petitioner has filed an application to terminate
the proceedings. The said application is filed under
Section 4 read with Section 35(1) of the Act. The
present petitioner in the said application claims that
respondents/plaintiffs are not in joint possession and
therefore, they are required to pay court fee in terms
of Section 35(1) of the Act. The said application is
seriously contested by the respondents/plaintiffs by
filing detailed objections. In the objection, the
respondents/plaintiffs contended that the issues
relating to court fee is answered in their favour by the
Trial Court as well as by the Division Bench of this
Court and therefore, petitioner cannot be permitted to
re-litigate the said issue in the Final Decree
Proceeding.
5. The learned Trial Judge having heard the rival
contentions and having examined the records, has
proceeded to reject the application. While rejecting
the application, the FDP Court has referred to the
finding recorded by the Division Bench of this Court in
regard to the joint possession of
respondents/plaintiffs. It is in this background, the
learned Trial Judge was not inclined to entertain the
application.
6. Heard Sri.R.Venkataramani, learned Senior
counsel appearing for the petitioner and learned
counsel appearing for the respondents/plaintiffs.
7. The short point that would arise for
consideration is as to whether the present
petitioner/defendant No.6, can agitate the issue
relating to payment of proper court fee on a plaint in
the Final Decree Proceeding.
8. My answer is NO.
9. The question of payment of court fee has to
be adjudicated and agitated in the main suit. If issue
No.5 is answered in favour of respondents/plaintiffs
and the same is confirmed by the Division Bench of
this Court, and if a Civil Appeal is pending for
consideration before the Hon'ble Apex Court in Civil
Appeal.No.7816-17/2012, then I am of the view that
petitioner cannot maintain an application before Final
Decree Proceeding Court.
10. It is more than trite that pursuant to
preliminary decree, the FDP Court has to work out the
feasibility of partition through a Commissioner and
after securing the report, the Court is required to draw
final decree. No doubt the FDP Court is vested with
jurisdiction to draw additional decree, if such
eventualities arise in the Final Decree Proceeding on
account of death of a party, but such a proposition
cannot be stretched to such an extent where a party
can be permitted to rake up issues relating to court
fee in the Final Decree Proceeding.
11. Be that as it may. If the matter is already
seized before the Hon'ble Apex Court, it is open for
petitioner to prosecute the Civil Appeal and if such
grounds are urged in Civil Appeal, then the issue has
to be decided by the Hon'ble Apex Court. It is made
clear that the impugned order under challenge will not
come in the way of petitioner in adjudication of issue
relating to the payment of court fee before the Hon'ble
Apex Court in a pending Civil Appeal.
12. Learned Senior counsel appearing for the
petitioner would point out to this Court that the
Division Bench of this court have not dealt with the
issue relating to payment of court fees. Therefore, the
grievance of learned Senior counsel before this Court
is that the decree is reversed by the Division Bench of
this Court without rendering a finding on court fee. If
that is so, it is always open for petitioner to question
the said finding before the Hon'ble Apex Court in the
pending Civil Appeal.
13. In that view of the matter, I am not inclined
to interfere with the order under challenge. Hence, I
pass the following;
ORDER
The writ petition is devoid of merits and stands
dismissed.
Sd/-
JUDGE
HDK
