Karnataka High Court

Mr C Anantha Bhat vs Mrs Asha P Shetty on 9 March, 2022

Bench: E.S.Indiresh

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 09TH DAY OF MARCH, 2022

                             BEFORE

          THE HON'BLE MR. JUSTICE E.S.INDIRESH

             W.P. NO. 19669 OF 2021 (GM-CPC)

BETWEEN

 MR C ANANTHA BHAT
 S/O LT C VASUDEVA
 BHAT
 AGED ABOUT 67 YEARS
 RA/T NO 6-70, DIDDU
 HOUSE
 CHITRAPURA, KULAI
 MANGALURU 575019
 DAKSHINA KANNADA
 DISTRICT.

                                             ...PETITIONER
(BY SRI RAJASHEKAR S, ADVOCATE)

AND

1.    MRS. ASHA P SHETTY
      W/O K PRAKASH SHETTY
      MAJOR

2.    MR. K PRAKASH SHETTY
      FATHER NAME NOT KNWON
      MAJOR

      BOTH ARE R/AT ASHA
      ALI ASKAR ROAD
      CUNNIGHAM CROSS
      BENGALURU - 560052.
                                   2




3.   M/S ASHA CITY BUILDERS AND DEVELOPERS
     A REGISTERED PARTNERSHIP FIRM
     HAVING OFFICE AT NO 9
     ALI ASKER ROAD
     CUNNINGHAM CROSS
     BENGALURU - 560052
     REPRESENTED BY ITS MANGING PARTNER

                                                      ....RESPONDENTS
(BY SRI KETHAN KUMAR, ADVOCATE FOR R1 TO 3)

      THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED
18.09.2021 PASSED ON PRELIMINARY ISSUE IN O.S NO.1172 OF 2018
ON THE FILE OF THE IV ADDITIONAL CIVIL JUDGE,MANGALURU VIDE
ANNEXURE-A.

     THIS PETITION COMING ON FOR THIS PETITION COMING ON
FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:


                              ORDER

In this Writ Petition, the petitioner has challenged the

order dated 18.09.2021 passed in OS No.1172 of 2018 on of the

file of IV Additional Civil Judge, Mangalore, on preliminary issue

relating to payment of court fee.

2. It is the case of the plaintiff that the plaintiff has filed

suit for permanent injunction against the defendants in respect

of the suit schedule property and during the pendency of the

suit, the plaint was amended by incorporating the relief for

declaration. The defendants entered appearance and filed written

statement denying the averments made in the plaint. The Trial

Court, after the considering the pleadings on record, has framed

issues and additional issues and thereafter, had taken additional

Issue No.3 as preliminary issue, is with regard to the payment of

the court fee in the suit. The Trial Court, after considering the

material on record, by its order dated 18.09.2021, directed the

plaintiff to pay court fee under Section 38 of the Karnataka Court

Fees and Suit Valuation Act, (hereinafter referred to 'Act') and

being aggrieved by the same, the plaintiff has preferred this Writ

Petition.

3. I have heard Sri Rajashekar S., learned counsel

appearing for the petitioner and Sri Kethan Kumar, learned

counsel appearing for the respondents 1 to 3.

4. Sri Rajashekar S., learned counsel appearing for the

petitioner contended that no doubt, suit was filed for injunction,

but was later amended seeking declaratory relief contending that

General Power of Attorney dated 26.12.2005 and subsequent

Sale Deed dated 06.05.2006 are null and void and he denied the

execution of the said documents as an executant and therefore,

he contended that Section 38 of the Act is not applicable to the

case on hand and suit has to be valued in terms of Section 24

(d) of the Act. He also places reliance on the judgment of the

Hon'ble Apex Court in the case of Suhrid Singh Alias Sardool

Singh vs. Randhir Singh and others reported in (2010) 12

SCC 112 and the judgment of this Court in case of Sri K L

Venugopal and another vs. Smt.Vimala K.Venugopal and

others reported in 2018 (1) Kar.L.R.857 and argued that the

plaintiff has pleaded that he has not executed the General Power

of Attorney or alleged Sale Deed and therefore, Section 38 of the

Act is not applicable to the case on hand.

5. Per contra, Sri Ketan Kumar, learned counsel

appearing for the respondents sought to justify the impugned

order passed by the Trial Court.

6. Learned HCGP is directed to take notice for

respondent-State and argued for sustaining the impugned order

passed by the Trial Court.

7. Heard the learned counsel appearing for the parties.

The additional Issue No.3 framed by the Trial Court taking into

account, the cancellation of General Power of Attorney and Sale

Deed as contended in the suit. It is the specific case of the

plaintiff in the plaint that he is not an executant of those

documents. In that view of the matter, it is relevant to extract

the observation made by the Hon'ble Apex Court at paragraphs

7 and 8 of the judgment in the case of Suhrid Singh (supra)

which reads thus:

"7. Where the executant of a deed wants it to be annulled, he has to seek cancellation of the deed. But if a non-executant seeks annulment of a deed, he has to seek a declaration that the deed is invalid, or non-est, or illegal or that it is not binding on him. The difference between a prayer for cancellation and declaration in regard to a deed of transfer/conveyance, can be brought out by the following illustration relating to `A' and `B' -- two brothers. `A' executes a sale deed in favour of `C'. Subsequently `A' wants to avoid the sale. `A' has to sue for cancellation of the deed. On the other hand, if `B', who is not the executant of the deed, wants to avoid it, he has to sue for a declaration that the deed executed by `A' is invalid/void and non- est/ illegal and he is not bound by it. In essence both may be suing to have the

deed set aside or declared as non-binding. But the form is different and court fee is also different. If `A', the executant of the deed, seeks cancellation of the deed, he has to pay ad-valorem court fee on the consideration stated in the sale deed. If `B', who is a non-executant, is in possession and sues for a declaration that the deed is null or void and does not bind him or his share, he has to merely pay a fixed court fee of Rs. 19.50 under Article 17(iii) of Second Schedule of the Act. But if `B', a non- executant, is not in possession, and he seeks not only a declaration that the sale deed is invalid, but also the consequential relief of possession, he has to pay an ad- valorem court fee as provided under Section 7(iv)(c) of the Act.

8. Section 7(iv)(c) provides that in suits for a declaratory decree with consequential relief, the court fee shall be computed according to the amount at which the relief sought is valued in the plaint. The proviso thereto makes it clear that where the suit for declaratory decree with consequential relief is with reference to any property, such valuation shall not be less than the value of the property calculated in the manner provided for by clause (v) of Section 7."

8. I have also noticed from the judgment of this Court

in the case of K.L.Venugopal and another (supra), wherein,

this court at paragraph 17 of its judgment has held that the

since the executant to the particular documents has raised

objection with regard to same, then, the court fee has to be paid

under Section 24(d) of the Act and not under Section 38 of the

Act, as observed by the Trial Court. However, it is made clear

that in the event, if the Trial Court, at the time of the disposal of

the suit opines that the plaintiff is the executant of the

aforementioned documents, then the Trial Court shall direct the

plaintiff to pay court fee under Section 38 of the Act, at the time

of drawing up of the final decree. Accordingly, order dated