Smt. Muniyamma vs Smt. Muniyamma
2022 Latest Caselaw 4799 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 15TH DAY OF MARCH, 2022

                       BEFORE

THE HON'BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY

     WRIT PETITION NO.4548 OF 2016 (GM-CPC)

BETWEEN:

SMT. MUNIYAMMA
W/O LATE RAMANNA,
D/O DODDMUNINANJAPPA,
AGED ABOUT 66 YEARS,
R/AT NO.86, BEHIND IIM COMPOUND,
NEAR PATEL RESIDENCY
RAGHAVENDRA COLONY ROAD,
BILEKAHALLI, BANNERGHATTA ROAD,
BANGALORE-560 076.
                                      ...PETITIONER
(BY SRI. V.B.SHIVAKUMAR, ADVOCATE)

AND:

1.     SMT. MUNIYAMMA
       W/O LATE B.M.MUNIKRISHNAPPA,
       AGED ABOUT 58 YEARS.

2.     SMT. PUTTAMMA
       D/O LATE B.M.MUNIKRISHNAPPA,
       W/O MUNIYAPPA,
       AGED ABOUT 41 YEARS.

3.     MAHESH KUMAR,
       S/O LATE B.M.MUNIKRISHNAPPA,
       AGED ABOUT 36 YEARS.
                                     W.P. No.4548/2016
                         2


4.   SHIVAKUMAR
     S/O LATE B.M.MUNIKRISHNAPPA,
     AGED ABOUT 26 YEARS.

5.   KUM. VIMALA
     D/O LATE B.M.MUNIKRISHNAPPA,
     AGED ABOUT 25 YEARS.

     [1 TO 5 ARE R/AT OPP. GANDHI HOUSE
     SOMESWARA TEMPLE STREET,
     1ST CROSS, BANNERGHATTA ROAD,
     BILEKAHALLI,
     BANGALORE-560 076]

(VIDE ORDER DATED 2.3.2022 W.P. AGAINST NO.1 TO 5
STAND DISMISSED)

6.   V. KRISHNA
     S/O H.VENKATASWAMAPPA,
     AGED ABOUT 58 YEARS.

7.   SMT. LALITHAMMA
     W/O V KRISHNA,
     AGED ABOUT 52 YEARS.

     [6 & 7 ARE R/AT:
     NO.141/6, 4TH FLOOR, 2ND CROSS,
     BEHIND SANTHISAGAR HOTEL,
     MARENAHALLI, J.P.NAGAR II STAGE,
     BANGALORE-560 078.

8.   MOHAMMAED SHAFI
     S/O RAZACK SAHEB
     AGED ABOUT 66 YEARS,
     R/AT C CROSS,
     BISMILLANAGAR,
     BANNERGHATTA ROAD CROSS,
     BANGALORE-560 029.
                                      W.P. No.4548/2016
                          3


(VIDE ORDER DATED 2.3.2022, W.P. AGAINST NO.8 TO 5
STAND DISMISSED)

9.    SMT. RAFI ANJOOM
      MAJOR IN AGE,
      W/O KALIMULLA M.D.
      R/AT BEKEKAHALLI VILLAGE,
      BEGUR HOBLI,
      BANGALORE SOUTH TALUK-50074

(VIDE ORDER DATED 2.3.2022 W.P. AGAINST NO.9 TO 5
STAND DISMISSED)

10.   SMT. NAGARATHNAMMA
      AGED ABOUT 54 YEARS
      W/O GOWDAPPA,
      R/AT RAMA MANDIRA,
      1ST MAIN ROAD, HEBBAL,
      BANGALORE-560 024.

11.   M. SRINIVAS
      AGED ABOUT 54 YEARS,
      S/O LATE MUNIYAPPA,
      R/AT NO.17, BILEKAHALLI VILLAGE,
      BANNERGHATTA ROAD,
      BANGALORE-560 076.

12.   SMT. RATHNAMMA
      W/O VENKATARAMANAPPA
      AGED ABOUT 48 YEARS,
      R/AT NO.47,
      BEHIND DHARMARAYASWAMY TEMPLE
      ADJACENT TO HOUSE TO AUTO SRINIVAS
      BILEKAHALLI
      BANNERGHATTA ROAD,
      BANGALORE-560 076.
                                       W.P. No.4548/2016
                          4


13.   M/S. LAKSHMI ENGINEERING WORKS
      REP. PROPRIETOR THERA REDDY,
      AGED ABOUT 39 YEARS.

14.   AROKYA INDUSTRIES,
      REP. BY ITS PROPRIETOR.

(VIDE ORDER DATED 2.3.2022, W.P. AGAINST
RESPONDENT NO.11 TO 14 STAND DISMISSED)

15.   INVENTION INDIA
      REPLL BY ITS PROPRIETOR

16.   JEEVAN ENTERPRISES
      REP. BY PROPRIETOR SRI. ANAND
      AGED ABOUT 44 YEARS.

(VIDE ORDER DATED 02.03.2022, W.P. AGAINST
RESPONDENT NO.16 STANDS DISMISSED)

[NOS.13 TO 16 ARE AT NO.1
102/BM SRI. SHAKTHI
MAHAGANAPATHI TEMPLE STREET,
NEAR PANCHAYATH OFFICE,
BILEKAHALLI,
BANGALORE-560 076]

                                       ..RESPONDENTS

(BY SRI HARINATH M.S, ADVOCATE FOR R-6 & R-7

 (V/O DATED 2.3.2022, W.P. AGAINST R-1 TO R-5, R-8,
R-9, R-11 TO R-14 and R-16, STAND DISMISSED

V/O DT: 22.10.2019, NOTICE TO R-15 HELD SUFFICIENT )
                                            W.P. No.4548/2016
                             5


     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT
IN THE NATURE OF CERTIORARI OR ANY OTHER WRIT,
ORDER OR DIRECTION THEREBY QUASHING AND/OR
SETTING ASIDE THE ORDER DATED 2.1.2016 PASSED IN
ISSUE NO.6 BY THE IX ADDITONAL CITY CIVIL JUDGE,
CCH NO.5,(O.S.NO.4978/2012) BANGALORE-ANNEXURE-A
AND TO CONSEQUENTLY ANSWER ISSUE NO.6 IN THE
AFFIRMATIVE AND ETC.,


     THIS    WRIT   PETITION   COMING   ON FOR
PRELIMINARY HEARING IN 'B' GROUP, THROUGH
PHYSICAL HEARING/VIDEO CONFERENCING HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:



                       ORDER

The present petitioner is the plaintiff and

respondents are the defendants in O.S.No.4978/2012

on the file of IX Additional City Civil and Sessions

Judge, Bengaluru (CCH No.5), (hereinafter for brevity

referred to as the 'trial Court').

2. Being aggrieved by the impugned order

dated 02.01.2016 passed by the trial Court, holding W.P. No.4548/2016

that the Court Fee paid by the petitioner as a plaintiff

on the plaint under Section 35 (2) of Karnataka Court

Fee and Suit Valuation Act, 1958 (hereinafter for

brevity referred to as the 'Court Fee Act') is incorrect

and consequently directing the petitioner to value the

suit under Section 35 (1) of the said 'Act' and to pay

the proper Court Fee thereon, within thirty (30) days

or else the Court shall proceed to reject the plaint by

invoking the procedure contemplated under Order VII

Rule 11 of Code of Civil Procedure (hereinafter for

brevity referred to as 'CPC'), the plaintiff has preferred

this Writ petition.

3. Admittedly, the suit of the plaintiff in the

trial Court was the one for partition and separate

possession. According to her, she has been in the

joint possession of the suit schedule properties, as

such, a fixed court fee has been paid by her under W.P. No.4548/2016

Section 35 (2) of the Court Fee Act. However, at the

objection raised by the contesting defendants who are

the Caveators/respondent Nos.6 and 7 herein, the

Court tried a issue on the court fee as 'Issue No.6' as

a preliminary issue, heard the parties and proceeded

to pass the impugned order holding that the plaintiff

had to value the suit under Section 35 (1) of the Court

Fee Act and pay the proper court fee, within 30 days

or else the Court shall further proceed to reject the

plaint by invoking the procedure contemplated under

Order VII Rule 11 of CPC.

4. Learned counsel for the petitioner submits

that the Court on its own assumed certain things

merely based on the alleged address given by the

plaintiff before it and held that the plaintiff has not

been in possession of the property and directed to pay

an additional court fee which was uncalled for in the W.P. No.4548/2016

circumstances of the case. He submitted that the

plaintiff ought to have been granted an opportunity to

lead her evidence, which opportunity was denied and

deprived to the plaintiff, which constrained her to

approach this Hon'ble Court.

5. Per contra, learned counsel for the

caveators/respondent Nos.6 and 7 submitted that the

plaintiff has admitted in her pleadings that she has not

been in possession of the suit schedule property,

further her address is also even of such an address,

which by cursory look go to show that she has not

been in physical possession of the said property, as

such the trial Court rightly appreciating the same has

passed an appropriate order which does not warrant

any interference by this Court.

6. Section 11 (2) of the Court Fee Act, being

the relevant portion of the law, reads as follows:-

W.P. No.4548/2016

11. Decision as to proper fee in courts.-

(1) xxxx

(2) Any defendant may, by his written statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim but, subject to the next succeeding sub-section not later, plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. If the court decides that the subject matter of the suit has not been properly valued or that the fee paid is not sufficient, the court shall fix a date before which the plaint shall be amended in accordance with the Court's decision and the deficit fee shall be paid. If the plaint be not amended or if the deficit fee be not paid within the time allowed, the plaint shall be rejected and the court shall pass such order as it deems just regarding costs of the suit.

W.P. No.4548/2016

A reading of the said Section would go to show

that whenever a defendant raises any objection

regarding the deficiency of the Court Fee on the

plaint, then all such questions arising on such pleas

have to be heard and decided before evidence is

recorded in the matter. Admittedly, in the instant

case, the defendant had raised such an objection

regarding the court fee. It is by virtue of the said

objection, the trial Court had framed an issue as Issue

No.6, which reads as follows:

"6. Whether the Court Fee paid is insufficient?

No doubt, the trial Court has heard from both

sides on the alleged deficiency of Court Fee raised by

the defendant and the learned counsels from both

sides have addressed their arguments. However,

admittedly, the plaintiff in the trial Court was not

given an opportunity to lead her evidence, if any, W.P. No.4548/2016

regarding her alleged joint possession of the suit

schedule property to satisfy the sufficiency of the

court fee to enable the trial Court to give effective

finding on Issue No.6. According to the learned

counsel for the petitioner, such a request for leading

evidence was also made before the trial Court.

However, the trial Court observed that there is no

necessity to lead the evidence.

7. A perusal of the impugned order would go

to show that the trial Court has noticed that in

paragraph 5 of the impugned judgment, that in

paragraph Nos. 22 to 25 of the plaint, the plaintiff has

pleaded as to how she came to know about the

alienation in respect of the properties situated at

Bilekahalli village itself and in her cause title, her

address and the address of defendant Nos.1 to 5 is

shown as Bilekehalli village. Observing so, the trial W.P. No.4548/2016

Court further observed that it is therefore, the learned

counsel for respondent Nos.6 and 7 was right to

submit that the Court can safely give a finding on

Issue No.6, without even holding an enquiry under

Section 11 of the Court Fee Act and the learned

counsel who was also right in contending that the suit

filed by the plaintiff under Section 35 (2) of the Court

Fee Act is incorrect.

After the said observation, the trial Court further

held that when the properties are situated at

Bilekahalli village and the plaintiff has shown her

residence as Bilekahalli village, she has questioned the

sale deeds which according to her are not binding on

her share. In such circumstances, the trial Court

stating that under such circumstances, it is of the

opinion that to give finding on such issue, it requires

evidence to give any opinion on those sale deeds, W.P. No.4548/2016

straight away proceeded to observe that the trial

Court could make out that she is not in joint

possession of the schedule property.

8. In my opinion, the mere fact that the

plaintiff is said to have questioned certain sale deeds

said to have been executed by some of the defendants

in favour of others or that her address is different than

the location of the property would itself is not

sufficient to hold that the plaintiff was not in joint

possession of the property. Needless to say that in

order to show that the disputed alleged joint family

property and are in joint possession, one need not

have to necessarily and in all circumstances, prove

and establish the actual physical possession of the

property by him/her. However, in the instant case,

the trial Court appears to have carried away by the

alleged address given by the plaint in the cause title of W.P. No.4548/2016

the plaintiff and also of the fact that she is said to

have disputed certain sale deeds said to have been

executed by the defendant and without attributing any

reason as to how that the same can be reduced to

hold to the effect that she was not in joint

possession of the schedule property, straight away

jumped to the conclusion that she was not in

possession of the schedule property and directed her

to value the suit under Section 35 (1) of the Court

Fee Act.

9. When the Court has framed an issue in the

matter, specifically, Issue No.6 pertaining to the

sufficiency of the court fee, in the circumstances of

the case, it was required for the Court to give an

opportunity to the plaintiff to lead evidence on the

said issue, though it was tried as preliminary issue

before giving its finding. The very purpose of framing W.P. No.4548/2016

the issue is to show that the particular issue is triable

between the parties. The said principle of law, though

has been shown by the trial Court in its impugned

order itself that holding of an enquiry is generally

required, as observed above, it was mislead by the

address of the plaintiff and she challenging certain

sale deeds. At the same time, it also ignored of the

other pleadings in the plaint, that the plaintiff had

demanded the alleged tenants in some portions of the

suit schedule properties to pay the rent to her

claiming herself as a landlady. Thus it has shown her

alleged exercise of right as a landlady in possession of

the suit property. Thus, when the rival contentions

were there, the trial Court was not justified in giving

untenable reasoning of the alleged address and the

question of the sale deed as a basis to hold that she

was not in joint possession of the said property while

passing the impugned order.

W.P. No.4548/2016

Accordingly, the impugned order deserves to be

quashed and the trial Court is required to be directed

to decide on Issue No.6 regarding the court fee in

accordance with law.

Ordering accordingly, the Writ petition stands

allowed and the order dated 02.01.2016 passed on

Issue No.6 in O.S.No. 4978/2012 on the file of IX

Additional City Civil and Sessions Judge, Bengaluru

(CCH-5) which is at Annexure-A to the Memorandum

of Writ petition stands quashed.

Sd/-

JUDGE mbb