Karnataka High Court
Dr. B Nishakantha Shetty vs Smt. Philomena Cynthia Monteiro on 9 February, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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WP No. 3869 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 3869 OF 2024 (GM-CPC)
BETWEEN:
1. DR. B NISHAKANTHA SHETTY
S/O B NAGANNA SHETTY
AGED ABOUT 74 YEARS
NO 26, SANNIDHI 2ND CROSS,
VIVEKANANDA NAGAR,
BENGALURU - 560 033
2. SMT. GEETHA N SHETTY
W/O DR.B. NISHAKANTHA SHETTY,
AGED ABOUT 66 YEARS
NO 26, SANNIDHI 2ND CROSS,
VIVEKANANDA NAGAR,
BENGALURU - 560 033
...PETITIONERS
(BY SRI. M J ALVA., ADVOCATE)
Digitally
signed by AND:
VANDANA S
Location: 1. SMT. PHILOMENA CYNTHIA MONTEIRO
HIGH
COURT OF W/O MR. CYPRIAN D SOUZA
KARNATAKA AGED ABOUT 64 YEARS
2. CANUTE PAUL MONTEIRO
S/O LATE HENDRY FEDRICK MONTEIRO
AGED ABOUT 58 YEARS
3. SMT WILMA JACINTA MONTEIRO
D/O LATE HENDRY FEDRICK MONTEIRO
AGED ABOUT 54 YEARS
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WP No. 3869 of 2024
4. SMT. MARIA JACINTA MONTEIRO
W/O LATE VINCENT PATRICK MONTEIRO
AGED ABOUT 60 YEARS
5. SMT VINITIA JASMINE MONTEIRO
D/O LATE VINCENT PATRICK MONTEIRO
AGED ABOUT 36 YEARS
6. WINSTON JOSWIN MONTEIRO
S/O LATE VINCENT PATRICK MONTEIRO
AGED ABOUT 34 YEARS
7. VINITHA JANICE MONTEIRO
D/O LATE VINCENT PATRICK MONTEIRO
AGED ABOUT 27 YEARS
NOS.1 TO 7 ABOVE ARE RESIDENTS OF
NO 1-150/1 MELAKOPPALA HOUSE
PANJIMOGARU VILLAGE, KULUR POST,
MANGALURU - 575 013
8. CLAUDIUS FELIX MONTEIRO
S/O LATE HENDRY FEDRICK MONTEIRO
AGED ABOUT 71 YEARS
WORKING AT ABU DHABI
HAVING ADDRESS AT AL- FUTTAIM ENGG
POST BOX NO 8242,
ABU DHABI (UAE)
R/O NO 1-150/1 MELAKOPPAL HOUSE,
PANJIMOGARU VILLAGE KULUR POST,
MANGALURU - 575 013
9. SMT. AFIYA BHANU
W/O ABDUL AZEEM,
AGED ABOUT 37 YEARS,
R/AT AIFA APARTMENT, JEPPU
MANGALURU - 575 001
10. HILARY FRANKLILN MONTEIRO
S/O LATE HENDRY FEDRICK MONTEIRO
AGED ABOUT 70 YEARS
WORKING AT COMSIPI AL, A - ALI,
POST BOX NO 2342
MANAMA KINGDOM OF BAHRAIN
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WP No. 3869 of 2024
11. ANTONY DENIS MONTEIRO
S/O LATE HENDRY FEDRICK MONTEIRO
AGED ABOUT 60 YEARS
WORKING AT SAGA DRILL SHARJAH
UAE
12. SMT THELMA RITA MONTERIO NEE FERNANDES
D/O HENDRY FEDRICK MONTEIRO
AGED ABOUT 67 YEARS
WORKING AT CANADA
HAVING ITS ADDRESS AT 574
MEADOWVALE ROAD,
TORONTO ONTARIO MIC 4Y4
NOS.11 & 12 ARE HAVING PERMANENT
ADDRESS AT NO 1-150/1 ,
MELAKOPPAL HOUSE, PANJIMOGARU VILLAGE,
KULUR POST, MANGALURU - 575 013
...RESPONDENTS
(BY SRI.K.ANANDARAMA., ADVOCATE)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO PASS AN ORDER SETTING
ASIDE THE IMPUGNED ORDER DATED 09/01/2024 PASSED BY THE
LEARNED PRINCIPAL SR. CIVIL JUDGE AND CJM MANGALURU IN
OS NO. 90/2014 DISPOSING THEIR IA NO. 45 FILED UNDER
SECTION 151 OF CPC WHICH IS PRODUCED AT ANNEXURE-A &
ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition by the defendants in O.S.No.90/2014 on the file
of the Principal Senior Civil Judge and CJM, Mangaluru, is directed
against the impugned order dated 09.01.2024 whereby the request
of the petitioners-defendants by filing I.A.No.45 to decide issue
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No.5 relating to valuation and Court fee as a preliminary issue, was
rejected by the Trial Court.
2. Heard learned counsel for the petitioners and learned
counsel for the respondents and perused the material on record.
3. A perusal of the material on record will indicate that the
respondents-plaintiffs instituted the aforesaid suit against the
petitioners-defendants for declaration, permanent injunction and for
other reliefs in the suit schedule immovable property in respect of
Sale Deed dated 26.04.2014 and for other reliefs. The said suit is
being contested by the petitioners-defendants who have taken up
various defences including the contention that the suit had not
been properly valued and that the court fee paid was insufficient.
According to the petitioners-defendants that the respondents-
plaintiffs had sought for declaration regarding the said Sale Deed
dated 26.04.2014 and valued the suit under Section 24(d) of the
Karnataka Court Fees and Suits Valuation Act, 1958, in
essence/substance, the said relief for one for cancellation to which
Section 38 of the Karnataka Court Fees and Suits Valuation Act,
1958 was applicable and the respondents would be liable to pay
advolorem court fee on the market value of the suit schedule
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property. Pursuant to the pleading of the parties, Trial Court
framed 8 issues including issue No.5 relating to valuation and court
fee. At the stage of cross-examination of PW.1, petitioners filed an
instant application I.A.No.45 requesting the Trial Court to treat the
said issue No.5 as a preliminary issue. The said request was
turned down by the Trial Court by rejecting I.A.No.45, aggrieved by
which the petitioners is before this Court by way of the present
petition.
4. Though several contentions are urged by both sides as
regards proper/improper valuation as well as
sufficiency/insufficiency of the court fee paid on the plaint, in the
light of the undisputed fact that the suit is before the court of Senior
Civil Judge who has unlimited peculiarly jurisdiction coupled with
the judgment of Hon'ble full bench in the case of Venkatesh R
Desai v/s Smt. Pushpa Hosmani and Others, ILR 2018,
Karnataka 5095, I am of the considered opinion that the impugned
order passed by the Trial Court has not occasioned failure of
justice and same is in conformity with the ratio of the judgment of
the Hon'ble full bench as under:
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" Conclusion
35. Accordingly, and in view of the above, we are clearly of
the view that by virtue of Section 11 of the Karnataka Court
Fees and Suits Valuation Act, 1958 read with Order XIV Rule
2 of the Code of Civil Procedure, 1908, when an issue of
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 tried as a preliminary issue and before taking
evidence on other issues; but could be tried as a preliminary
issue if it relates to the jurisdiction and the Trial Court is of
the view that the suit or any part thereof could be disposed of
on its determination. The reference stands answered
accordingly."
5. Accordingly I do not find any merit in the petition and the
same is hereby disposed of without interfering with the impugned
order.
6. The Trial Court is directed to dispose of the suit by
deciding on all issues including issue No.5, in accordance with law
as expeditiously as possible.
7. All rival contentions on all aspects of the matter including
valuation and court fee, are kept open and no opinion is expressed
on the same.
Sd/-
JUDGE
DHA
