Karnataka High Court
Irappa S/O Shivarudrappa Vijjaramatti vs Smt Mahadevi W/O Shrishailappa ... on 30 May, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2024:KHC-D:7215
CRP No. 100174 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 30TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
CIVIL REVISION PETITION NO.100174/2023
BETWEEN:
1. IRAPPA
S/O. SHIVARUDRAPPA VIJJARAMATTI,
AGE: 61 YEARS, OCC: AGRICULTURE,
R/O: VAJJARAMATTI ONI,
NEAR MAHALINGESHWAR TEMPLE,
MAHALINGAPUR,
TQ. RABAKAVI - BANAHATTI,
DIST: BAGALKOT - 587 312.
2. NAGARAJ
S/O. IRAPPA VAJARAMATTI,
AGE: 25 YEARS, OCC: AGRICULTURE,
R/O: VAJJARAMATTI ONI,
NEAR MAHALINGESHWAR TEMPLE,
MAHALINGAPUR,
TQ: RABAKAVI - BANAHATTI,
DIST: BAGALKOT 587 312.
Digitally signed
by YASHAVANT
NARAYANKAR 3. SMT. SHARADA
Location: High
Court of
W/O. SHIDLINGAPPA DEVASHETTI,
Karnataka AGE: 61 YEARS,
OCC: HOUSEHOLD WORK,
R/O: LAXMI CIRCLE, NARAKAMMATI,
NEAR LAXMAWWA TEMPLE,
BOMBAY CHAAL, GOKAK,
TQ: GOKAK,
DIST: BELAGAVI - 591 218.
4. SMT. SUNANDA
W/O. ISHWARAPPA DADED,
AGE: 59 YEARS,
OCC: HOUSEHOLD WORK,
R/O AND C/O: CHETAN DADED,
JAMAKHANDI,
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NC: 2024:KHC-D:7215
CRP No. 100174 of 2023
DIST: BAGALKOT - 587 301.
5. SMT MAHANANDA
W/O. VIJAKUMAR HEDURASHETTI,
AGE: 57 YEARS,
OCC: HOUSEHOLD WORK,
R/O: NEAR MILK DAIRY,
MAHANTESH NAGAR, BELAGAVI,
TQ: BELAGAVI,
DIST: BELAGAVI - 590 016.
6. SMT VIMALA
W/O. BASAVARAJ ARAGANJI,
AGE: 56 YEARS,
OCC: HOUSEHOLD WORK,
R/O: VAJJARAMATTI ONI,
NEAR MAHALINGESHWAR TEMPLE,
MAHALINGAPUR,
TQ: RABKAVI-BANAHATTI,
DIST: BAGALKOT - 587 312.
7. SMT SHANTA
W/O. SHRIKANTH NOOLI,
AGE: 66 YEARS, OCC: HOUSHOLD WORK,
R/O AND C/O: VIRUPAXAPPA AGADI,
EX MLA, KOPPAL, TQ: KOPPAL,
DIST: KOPPAL - 583 231.
...PETITIONERS
(BY SRI GIRISH A. YADAWAD, DIVYA J. DESHPANDE AND
RAHUL S. KUNTOJI, ADVOCATES)
AND:
1. SMT MAHADEVI
W/O SHRISHAILAPPA VAJJARAMATTI,
AGE: 67 YEARS,
OCC: AGRICULTURIST
R/O BALIKUNDRI K.H.
TQ. AND DSIT: BELAGAVI - 591 103.
2. SMT MANGALA
W/O. VIJAYKUMAR VAJJARMATTI
SINCE DECEASED BY HER LRS.
R3 AND R4 ARE TREATED AS LR'S OF
DECEASED R2 AS PER DATED 18.03.2024.
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NC: 2024:KHC-D:7215
CRP No. 100174 of 2023
3. SHASHANK
S/O. VIJAYKUMAR VAJJARAMTTI,
AGE: 19 YEARS, OCC: STUDENT,
R/O: BALIKUNDRI K.H.,
TQ. AND DIST: BELAGAVI - 591 103.
4. GAYATRI
D/O. VIJAYKUMAR VAJJARAMATTI,
AGE: 21 YEARS, OCC: STUDENT,
R/O: BALIKUNDRI K.H.,
TQ. AND DIST: BELAGAVI - 591 103.
5. SMT. YELLAWWA
W/O. LANKESH PATIL,
AGE 41 YEARS,
OCC: AGRICULTURE AND BUSINESS,
R/O: MAHALIGAPUR,
R/O: RABKAVI-BANAHATTI,
DIST: BAGALKOT - 587 312.
...RESPONDENTS
(BY SRI CHETAN KULKARNI AND
VINAYAK BHAT, ADVOCATE FOR R1, R3 AND R4;
R2 IS DECEASED;
NOTICE TO R5 IS DISPENSED WITH)
THIS CRP IS FILED UNDER SEC.115 OF CPC, 1908, PRAYING
TO, ALLOW THE CIVIL REVISION PETITION AND SET ASIDE THE
ORDER DATED 29.11.2023 PASSED BY THE PRINCIPAL SENIOR CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, MUDHOL ON
IA.NO.IV IN O.S.NO.19/2022 AND CONSEQUENTLY REJECT THE
PLAINT BY ALLOWING THE SAID APPLICATION AND ETC.,
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
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CRP No. 100174 of 2023
ORDER
The present petition is filed by the defendants being
aggrieved by the order dated 29.11.2023 passed in
O.S.No.19/2022 on the file learned Principal Senior Civil
Judge and JMFC, Mudhol (for short, hereinafter referred to
as 'Trial Court') by which the Trial Court has rejected the
application filed by the petitioners/defendants under Order
VII Rule 11(a) and (d) read with Section 151 of Code of
Civil Procedure, 1908 (for short, hereinafter referred to as
'CPC').
2. The above suit is filed by the
respondents/plaintiffs seeking relief of partition and
separate possession in respect of suit schedule properties
contending that the suit schedule properties are the
ancestral properties. The petitioners herein filed
application under Order VII Rule 11(a), (b) and (d)
seeking rejection of the plaint on the premise that the
plaint does not disclose cause of action, reliefs claimed are
undervalued for the purpose of court fees and suit is bared
by law.
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3. Objections to the said application were filed by
the plaintiffs seeking rejection of the application. It is
contended that the application filed was not maintainable
as there was no averment emanating the plaint which
would bar the maintainability of the suit resulting in
rejection of the plaint.
4. The Trial Court by the impugned order rejected
the application as the defendants did not make out a case
falling within the provisions of Order VII Rule 11 of CPC.
Aggrieved by the same defendants are before this Court.
5. Learned counsel for the petitioners submits that
though the defendants had filed the said application on the
grounds of plaint not disclose cause of action,
undervaluing of the suit schedule properties and on the
ground of limitation, he fairly submits that the only
contention which requires to be considered is with regard
to under valuation of the property and that the
petitioners/defendants would not press the other grounds.
6. In furtherance to his submission, he takes this
Court through the provisions of Order VII Rule 11(c) of
NC: 2024:KHC-D:7215
CPC and submits that once the defendants has brought to
the notice of the Court with regard to undervaluation of
subject property it was incumbent upon the Trial Court to
have assess the value of the property and fix the Court fee
payable thereon and ought to have called upon the
plaintiffs to pay the same. Failure to discharge this
statutory obligation by the Trial Court would automatically
results in plaint becoming non-maintainable.
7. Learned counsel for the petitioners relies upon
the judgment of the Division Bench of this Court passed in
the case of State of Karnataka Vs. Coimbatore
Premier Constructions reported in ILR (KAR) 1988-0-
457 in support of his contention.
8. Per contra, learned counsel appearing for the
respondents justifies the order passed by the Trial Court
and vehemently submits that the suit is one for partition.
He further submits that once the averment is made to the
effect that the suit schedule properties are joint family
property, nature of the property becomes irrelevant.
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9. He further submits that under the Karnataka
Court fees and Suit Valuation Act, 1958 court fee for the
suit for partition is fixed and such fixed court fee has
already been paid by the plaintiffs, warranting no further
probe into the valuation of the suit. Thus he submits that
the Trial Court has taken note of these aspects of the
matter while rejecting the application, warranting no
interference.
10. Heard and perused the records.
11. Order VII Rule 11(c) of CPC provides ground for
rejection of the plaint under the circumstances, where the
plaintiffs declines to pay the court fee determined by the
Court despite being called upon to pay the same. In the
instant case, there has been no such determination of
court fee or any order by the Trial Court calling upon the
plaintiffs to pay the court fee in the first place. Since the
prerequisite of Order VII Rule 11(c) of CPC namely order
of the Court requiring the plaintiffs to pay the court fee is
not being in place, the same cannot be a ground to
maintain an application under Order VII Rule 11(c) of CPC.
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12. Reliance placed by the learned counsel for the
petitioners on the judgment referred to above is not
applicable to the facts of the instant case.
13. No error in exercise of jurisdiction by the Trial
Court can be found in the impugned order.
14. Accordingly, petition is dismissed.
15. However, it is made clear that if the defendants
have raised the issue of payment of court fee, the Trial
Court may look into the same, afford opportunity to the
parties to address their contentions on the issue of court
fee and pass appropriate orders thereon without being
influenced by the rejection of the present petition.
SD/-
JUDGE
SMM/CT-ASC
