Karnataka High Court
Rudragouda And Ors vs Gurubai on 27 June, 2024
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WP No.201161 of 2024
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 27TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR. JUSTICE R.NATARAJ
WRIT PETITION NO.201161 OF 2024 (GM-CPC)
BETWEEN:
1. RUDRAGOUDA
S/O GOLLALLAPPA,
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O MAGANAGERA VILLAGE,
TQ: YADRAMI, DIST: KALABURAGI.
2. SMT. KASHIBAI
W/O RUDRAGOUDA BIRADAR,
AGE: 47 YEAR, OCC: HOUSEHOLD,
R/O KELLUR VILLAGE,
TQ: JEWARGI, DIST: KALABURAGI-585101.
Digitally signed 3. SMT. NEELGANGA D/O RUDRAGOUDA
by RENUKA W/O NITYANAND,
Location: High AGE: 28 YEARS, OCC: HOUSEHOLD,
Court Of
Karnataka 4. NINGANNAGOUDA
S/O RUDRAGOUDA BIRADAR,
AGE: 23 YEARS, OCC: AGRICULTURE,
R/O MAGANAGERA VILLAGE,
TQ: YADRAMI, DIST: KALABURAGI.
5. KUMAR ASHOK
S/O RUDRAGOUDA BIRADAR,
AGE: 17 YEARS, R/O MAGANAGERA VILLAGE ,
TQ: YADRAMI, DIST: KALABURAGI.
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WP No.201161 of 2024
6. KUMAR RAGHAVENDRA
S/O RUDRAGOUDA BIRADAR,
AGE: 15 YEARS, R/O MAGANAGERA VILLAGE,
TQ: YADRAMI, DIST: KALABURAGI.
THE PETITIONERS NO.5 AND 6 ARE MINOR
U/G FATHER PETITIONER NO.1
...PETITIONERS
(BY SRI SANJEEVKUMAR C. PATIL, ADVOCATE)
AND:
1. SMT. GURUBAI
D/O SHARANAPPA BIRADAR,
W/O BAGAVANTHRAYA DESAI,
AGE: 69 YEARS, OCC: HOUSEHOLD,
R/O KELLUR VILLAGE, TQ: JEWARGI,
DIST: KALABURAGI-585101.
2. SMT. KASTURBAI
D/O SHARANAPPA BIRADAR,
AGE: 70 YEARS, OCC: HOUSEHOLD,
R/O MAGANGERA, TQ: JEWARGI,
DIST KALABURAGI 585101.
3. SMT. SHIVALINGAMMA
D/O SHARANAPPA BIRADAR,
W/O DODDAPPAGOUDA,
AGE: 73 YEARS, R/O KACHAPUR,
TQ: SHORAPUR, DIST: YADGIR-585101.
4. SMT. LALITABAI D/O GOLLALLAPPA
W/O DADAGOUDA,
AGE: 58 YEARS, OCC: HOUSEHOLD,
R/O DATTANAGAR, KALABURAGI,
DIST: KALABURAGI-585101.
5. SMT. BORAMMA D/O GOLLALLAPPA
W/O DADAGOUDA PATIL,
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WP No.201161 of 2024
AGE: 55 YEARS, OCC: HOUSEHOLD,
R/O MALGHAN VILLAGE,
TQ: SINDAGI, DIST: KALABURAGI-585101.
6. KUMAR ABHISHEK
S/O RUDRAGOUDA BIRADAR,
AGE: 19 YEARS, R/O MAGANAGERA VILLAGE,
TQ: YADRAMI, DIST: KALABURAGI-585101.
7. SHARANAGOUDA
S/O GOLLALLAPPA BIRADAR,
AGE: 51 YEARS, OCC: HOUSEHOLD,
R/O MAGANAGERA VILLAGE,
TQ: YADRAMI, DIST: KALABURAGI-585101.
8. SMT. AKSHATA
W/O SHARANAPPA BIRADAR,
AGE: 48 YEARS, OCC: HOUSEHOLD,
R/O MAGANAGERA VILLAGE,
TQ: YADRAMI, DIST: KALABURAGI-585101.
...RESPONDENTS
(BY SRI B. BHIMASHANKAR, ADVOCATE FOR R1;
V/O DT.27/06/2024, NOTICE TO R2 TO R8 DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT,
DIRECTION OR ORDER IN THE NATURE OF CERTIORARI BY
QUASHING ANNEXURE-D ORDER DATED 12-02-2024, PASSED
BY THE SENIOR CIVIL JUDGE AND JMFC, JEWARGI, IN OS
NO.86/2021. FURTHER DIRECT THE PLAINTIFF TO PAY COURT
FEE AS PER SECTION 35(1) OF KARNATAKA COURT FEE AND
SUIT VALUATION ACT, 1960. ISSUE A WRIT, DIRECTION OR
ORDER WHICH DEEM FIT UNDER THE FACTS AND
CIRCUMSTANCES OF THE CASE.
THIS PETITION, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
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WP No.201161 of 2024
ORDER
The defendant Nos.5 to 8, 10 and 11 in
O.S.No.86/2021 on the file of the Senior Civil Judge and
JMFC at Jewargi have filed this petition challenging an
order dated 12.02.2024 in terms of which, the Trial Court
answered preliminary issue No.4 against defendant Nos.3
to 13.
2. A suit in O.S.No.86/2021 was filed for partition
and separate possession of agricultural lands situate at
Magangera village, Yadrami Taluka. The suit for the
purpose of jurisdiction was valued at a sum of
Rs.2,58,000/- to Rs.3,10,000/- per acre. For the purpose
of Court fee, it was valued under Section 35(2) of the
Karnataka Court Fees and Suits Valuation Act, 1958 (for
short 'the Act of 1958') and Court fee of Rs.200/- was paid
thereon.
3. The defendants contested the suit and denied
the relationship between the plaintiff and defendants.
They also denied that the plaintiff was in joint possession
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of the suit properties and thus contended that the Court
fee paid on the suit was inadequate and the plaintiff was
bound to pay Court fee under Section 35(2) of the Act of
1958. The Trial Court framed issues, one of which was,
whether the defendant Nos.3 to 13, further proves that
suit is not properly valued and court fee paid is
insufficient? The Trial Court after recording the evidence
of defendant Nos.3 to 13 who marked Exs.D.1 and D.2,
held that the suit was properly valued and the Court fee
paid thereon was just and satisfied. Being aggrieved by
the said order, the defendant Nos.5 to 8, 10 and 11 are
before this Court.
4. Learned counsel for the defendants contended
that in view of the judgment of the full Bench of this Court
in the case of Venkatesh R. Desai V. Smt. Pushpa
Hosmani and others reported in AIR 2019 Karnataka
47, the question whether the Court fee paid on a suit
could be tried as a preliminary issue or not was answered
and held that unless the issue regarding the Court fee
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relates to jurisdiction of the Court, the same cannot be
treated as a preliminary issue. He therefore, submits that
the impugned order be set aside and the Trial Court be
directed to dispose of all the issues including the
preliminary issue on merits.
5. Learned counsel for the plaintiff on the other
hand contended that the defendants having requested the
Court to treat the issue regarding the Court fee as a
preliminary issue and wasting judicial time in adducing
evidence on the said issue, they cannot claim that the
preliminary issue should be tried along with the other
issues.
6. I have considered the submissions made by the
learned counsel for the petitioners and the learned counsel
for the respondents.
7. The issue regarding the Court fee payable on a
suit for partition is a mixed question of fact and law. Since
the plaintiff had asserted that she was in joint possession
of the suit property, the valuation of the suit under Section
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35 of the Act of 1958 appears to be just and proper. Be
that as it may, since the defendants had contested the
claim that the plaintiff was in joint possession of the
property, that being a question of fact could not be tried
as a preliminary issue. It must have been tried along with
the other issues. Therefore, the request of the defendants
to treat issue regarding sufficiency of Court fee as a
preliminary issue itself was misconceived. Since the
defendants had compelled the Court to treat the issue
regarding the Court fee as a preliminary issue and had
adduced evidence thereby expending judicial time, it is
appropriate to dispose off the writ petition by setting aside
the order passed by the Trial Court and at the same time,
imposing cost on the defendant Nos.3 to 13 for compelling
the Court to spend judicial time to treat and adjudicate the
issue regarding the Court fee as preliminary issue. This
would meet ends of justice. Hence, the following
ORDER
(i) The Writ Petition is allowed in part.
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(ii) The impugned order passed by the Trial Court
in answering the preliminary issue against the
defendant Nos.3 to 13 is set aside and the Trial
Court is directed to consider the issue regarding
the Court fee along with the other issues. This
paying cost of Rs.10,000/- payable to the
District Legal Services Authority, Kalaburagi
within a period of one week from today.
(iii) If records of the Trial Court are received in this
Court, the registry is directed to re-transmit the
records to the Trial Court.
Sd/-
JUDGE
RSP
CT:SI
