Karnataka High Court
Erappa S/O Doddappa Gejji vs The Karantaka Kurubar Boarding Koppal on 11 November, 2024
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NC: 2024:KHC-D:16444
WP No. 106540 of 2024
C/W WP No. 106541 of 2024
WP No. 106542 of 2024
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 11TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
WRIT PETITION NO.106540 OF 2024 (GM-CPC)
C/W
WRIT PETITION NO.106541 OF 2024
WRIT PETITION NO.106542 OF 2024
IN WP.NO.106540/2024:
BETWEEN:
ERAPPA S/O. DODDAPPA GEJJI,
AGE: 71 YEARS, OCC: AGRICULTURE,
R/O: GEJJI STREET, KOPPAL - 583 231,
TQ AND DIST: KOPPAL.
...PETITIONER
(BY SRI SHRIHARSH A. NEELOPANT, ADVOCATE)
Digitally signed
by SAROJA
HANGARAKI AND:
Location: High
Court of
Karnataka
1. THE KARANTAKA KURUBAR BOARDING, KOPPAL,
REPRESENTED BY SECRETARY,
JAMBANNA S/O. KALAKAPPA NANDYAPUR,
AGE: NOT KNOWN, OCC: SECRETARY,
R/O: KALIDAS HIGH SCHOOL,
KUSHTAGI ROAD, KOPPAL - 583 231,
TQ AND DIST: KOPPAL.
2. THE TALUK BLOCK EDUCATION OFFICER,
KOPPAL, OPPOSITE S. P. OFFICE,
KOPPAL - 583 231, TQ AND DIST: KOPPAL.
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WP No. 106540 of 2024
C/W WP No. 106541 of 2024
WP No. 106542 of 2024
3. DISTRICT DIRECTOR OF P
UBLIC INSTURCTOR,
KOPPAL, D. C. OFFICE, KOPPAL - 583 231,
TQ AND DIST: KOPPAL.
4. THE COMMISSIONER,
CITY MUNICIPALITY, KOPPAL - 583 231,
TQ AND DIST: KOPPAL.
5. THE COMMISSIONER,
KOPPAL URBAN DEVELOPMENT OFFICER,
KOPPAL - 583 231,TQ AND DIST: KOPPAL.
6. THE DEPUTY COMMISSIONER,
D. C. OFFICE, KOPPAL - 583 231,
TQ AND DIST: KOPPAL.
7. THE SECRETARY,
GOVERNMENT OF KARANTAKA,
REVENUE DEPARTMENT,
BENGALURU - 560 001.
...RESPONDENTS
(BY SRI MRUTYUNJAY S. HALLIKERI, ADVOCATE FOR C/R1;
SMT. KIRTILATA R. PATIL, HCGP FOR R2 R3, R6 AND R7)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO, ISSUE A WRIT OR
ORDER OR DIRECTION IN THE NATURE OF WRIT OF CERTIORARI TO
QUASH THE ORDER DATED 11.07.2023 TREATING THE ISSUE NO.5
AS PRELIMINARY ISSUE PASSED IN O.S.NO.21/2023 PASSED BY THE
SENIOR CIVIL JUDGE AND CJM, KOPPAL AS PER ANNEXURE-A. TO
ISSUE A WRIT OR ORDER OR DIRECTION IN THE NATURE OF WRIT
OF CERTIORARI TO QUASH THE IMPUGNED ORDER DATED
19.10.2024 IN O.S.NO.21/2023 ON ISSUE NO.5 I.E., PRELIMINARY
ISSUE THEREBY DIRECTING PETITIONER TO PAY DEFICIT COURT OF
RS.3,01,078-00 ON OR BEFORE NEXT DATE OF HEARING I.E.,
19.10.2024 BY THE SENIOR CIVIL JUDGE AND CJM, KOPPAL AS PER
ANNEXURE-B AND ETC.,
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WP No. 106540 of 2024
C/W WP No. 106541 of 2024
WP No. 106542 of 2024
IN WP.NO.106541/2024:
BETWEEN:
ERAPPA S/O. DODDAPPA GEJJI,
AGE: 71 YEARS, OCC: AGRICULTURE,
R/O: GEJJI STREET, KOPPAL - 583 231,
TQ AND DIST: KOPPAL.
...PETITIONER
(BY SRI SHRIHARSH A. NEELOPANT, ADVOCATE)
AND:
THE KARANTAKA KURUBAR BOARDING, KOPPAL,
REPRESENTED BY SECRETARY,
JAMBANNA S/O. KALAKAPPA NANDYAPUR,
AGE: NOT KNOWN, OCC: SECRETARY,
R/O: KALIDAS HIGH SCHOOL, KUSHTAGI ROAD,
KOPPAL - 583 231, TQ AND DIST: KOPPAL.
...RESPONDENTS
(BY SRI MRUTYUNJAY S. HALLIKERI, ADVOCATE FOR C/R1)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO, ISSUE A WRIT OR
ORDER OR DIRECTION IN THE NATURE OF WRIT OF CERTIORARI TO
QUASH THE ORDER DATED 11.07.2023 TREATING THE ISSUE NO.6
AS PRELIMINARY ISSUE PASSED IN O.S.NO.31/2023 PASSED BY THE
SENIOR CIVIL JUDGE AND CJM, KOPPAL AS PER ANNEXURE-A. TO
ISSUE A WRIT OR ORDER OR DIRECTION IN THE NATURE OF WRIT
OF CERTIORARI TO QUASH THE IMPUGNED ORDER DATED
19.10.2024 IN O.S.NO.31/2023 ON ISSUE NO.6 I.E., PRELIMINARY
ISSUE THEREBY DIRECTING PETITIONER TO PAY DEFICIT COURT OF
RS.2,54,904-00 ON OR BEFORE NEXT DATE OF HEARING I.E.,
31.10.2024 BY THE SENIOR CIVIL JUDGE AND CJM, KOPPAL AS PER
ANNEXURE-B AND ETC.,
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WP No. 106540 of 2024
C/W WP No. 106541 of 2024
WP No. 106542 of 2024
IN WP.NO.106542/2024:
BETWEEN:
ERAPPA S/O. DODDAPPA GEJJI,
AGE: 71 YEARS, OCC: AGRICULTURE,
R/O: GEJJI STREET, KOPPAL - 583 231,
TQ AND DIST: KOPPAL.
...PETITIONER
(BY SRI SHRIHARSH A. NEELOPANT, ADVOCATE)
AND:
THE KARANTAKA KURUBAR BOARDING, KOPPAL,
REPRESENTED BY SECRETARY,
JAMBANNA S/O. KALAKAPPA NANDYAPUR,
AGE: NOT KNOWN, OCC: SECRETARY,
R/O: KALIDAS HIGH SCHOOL, KUSHTAGI ROAD,
KOPPAL - 583 231, TQ AND DIST: KOPPAL.
...RESPONDENTS
(BY SRI MRUTYUNJAY S. HALLIKERI, ADVOCATE FOR C/R1)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA, PRAYING TO, ISSUE A WRIT OR
ORDER OR DIRECTION IN THE NATURE OF WRIT OF CERTIORARI TO
QUASH THE ORDER DATED 11.07.2023 TREATING THE ISSUE NO.6
AS PRELIMINARY ISSUE PASSED IN O.S.NO.31/2023 PASSED BY THE
SENIOR CIVIL JUDGE AND CJM, KOPPAL AS PER ANNEXURE-A. TO
ISSUE A WRIT OR ORDER OR DIRECTION IN THE NATURE OF WRIT
OF CERTIORARI TO QUASH THE IMPUGNED ORDER DATED
19.10.2024 IN O.S.NO.31/2023 ON ISSUE NO.6 I.E., PRELIMINARY
ISSUE THEREBY DIRECTING PETITIONER TO PAY DEFICIT COURT OF
RS.2,54,904-00 ON OR BEFORE NEXT DATE OF HEARING I.E.,
31.10.2024 BY THE SENIOR CIVIL JUDGE AND CJM, KOPPAL AS PER
ANNEXURE-B AND ETC.,
THESE WRIT PETITIONS, COMING ON FOR PRELIMINARY
HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE C.M. POONACHA
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WP No. 106540 of 2024
C/W WP No. 106541 of 2024
WP No. 106542 of 2024
ORAL ORDER
(PER: THE HON'BLE MR. JUSTICE C.M. POONACHA)
In the aforementioned writ petitions the petitioner /
plaintiff calls in the question the orders dated 19.10.2024
whereunder the Trial Court has answered the issue with regard
to valuation and Court fee in the negative and directed the
plaintiff to pay deposit the Court fee.
2. Learned counsel for the petitioner Sri.
Shriharsh A. Neelopant., assailing the order of the Trial Court
contends that the same is contrary to the judgment of the Full
Bench of this Court in the case of Venkatesh R. Desai v/s
Smt. Pushpa Hosmani and Others1 and that despite the
Trial Court having been requested to defer the consideration of
the issue regarding valuation and Court fee to be adjudicated
along with other issues, the Trial Court has proceeded in
adjudicating upon the same. Further relying upon a Co-ordinate
Bench judgment of this Court in the case of R. Ananda V/S
Nanjudaswamy2 it is contended that merely because the suit
property came within municipal limits ad valorem Court fee
'AIR 2019 (1) KAR. L.J. 259(FB)
"2006(6) AIR KAR R 476"
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would not be payable. Further learned counsel for the petitioner
submits that the plaintiff is ready and willing to pay the Court
fee, in the event the Trial Court ultimately decides while
considering the issue regarding the valuation and the
sufficiency of Court fee along with other issues. Hence, he
seeks for allowing the writ petition.
3. Per contra, learned counsel Sri. Murthyunjay
S. Hallikeri appearing for the caveator - respondent No.1
submits that even as per the judgment of the Full Bench of this
Court in the case of Venkatesh R. Desai1 it is the discretion of
the Trial Court to consider the issue regarding valuation and
the Court fee at the preliminary stage. Further he contends that
the judgment in the case of R.Ananda2 has been overruled by
another Full Bench of this Court in the case of Mrs. Elfreeda
Winnifred D' Souza v/s Mr. Robin D' Souza And Others3.
4. The submissions of both the learned counsels
have been considered and the material on record have been
perused.
" ILR 2022 KAR 529"
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5. It is relevant to the note the Full Bench of this
Court in the case of Venkatesh R. Desai1 was considering as
to whether an issue regarding the Court fee and valuation is
required to be adjudicated as a preliminary issue has held as
follows:
"32. In the context of the Karnataka Court Fees and
Suits Valuation Act 1958, on the principles aforesaid and
for the purpose for which the provision is enacted, we
are clearly of the view that the expression 'shall as used
in sub-sections (2) and (5) of Section 11 of the Act of
1958 is required to be construed as directory in nature
and not mandatory. In other words, the determination of
the questions envisaged by sub-sections (2) and (5) of
Section 11 of the Act of 1958 may be undertaken by the
Court before the evidence is recorded on the merits of
the claim in its discretion; and such a discretion would
obviously be conditioned by the requirements of Rule 2
of Order XIV of CPC. Tersely put, in our view, if the Court
finds that the question of valuation and/or Court fees as
raised by the defendant relates to the jurisdiction of the
Court, it may try such an issue first and before the
evidence is recorded on the merits of the claim; and in
other eventualities, the Court may examine such a
question of valuation and/or Court fees, but not
necessarily as a preliminary issue or before the evidence
on other issues.
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."
(emphasis supplied)
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6. Another Full Bench of this Court in the case of
Mrs. Elfreeda Winnifred D' Souza3 was considered the
following:
"2. One Learned Single Judge in SMT.VIJAYALAKSHMI
vs. SMT. UGAMA BAI, reported in (2015) 4 KCCR
3947 has held that if the agricultural land in a
declaration suit is situate within the city corporation
limits, its valuation has to be done on ad valorem basis
u/s 24(a) of the Karnataka Court Fees and Suits
Valuation Act, 1958. This provision speaks of market
value of the property. The other Learned Single Judge in
R.ANANDA vs. NANJUNDASWAMY reported in 2006
SCC ONLINE KAR 557 has per contra held that merely
because the land comes within the city corporation
limits, it does not ipso facto lose its agricultural character
and therefore, suit has to be valued u/s 7(2)(b) of the
Act, wherein the land revenue factors and not the market
value of the suit land. Surprising, both these Learned
Judges in support of their views banked upon the very
same Division Bench decision namely J.NARAYANA &
ORS. vs. CORPORATION OF CITY OF BANGALORE
reported in ILR 2005 KAR 60."
6.1. While answering the same the Full Bench held as follows:
"(f) What emerges from the above observations of the
Division Bench is that where the land, be it agricultural
or otherwise, is situate within the municipal limits of a
city corporation, for the purpose of Court fee, its market
value has to be taken into consideration, even if the land
continues to be agricultural in the official records and the
land revenue instead of municipal tax otherwise payable
thereon. The decision of the Learned Single Judge in
SMT. VIJAYALAKSHMI reported in (2015) 4 KCCR
3947 supra accords with this view and therefore, reflects
the correct position of law. However, the decision of
another Learned Single Judge in RANANDA reported in
2006 SCC ONLINE KAR 557 supra runs counter to the
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view now we have taken and therefore, it has been
rendered a destitute of precedential value."
(Emphasis supplied)
7. The primary contention in the present writ
petitions are that issue regarding the valuation and Court fee
has been decided as a preliminary issue which is contrary to
the judgment the Full Bench of this Court in the case of
Venkatesh R. Desai1. However, it is relevant to note that the
Trial Court while requiring the plaintiff to pay Court fee has
recorded a finding that the suit properties are the agricultural
properties and the same has come within the CMC limits.
Having regard to the judgment of Full Bench of the Court in the
case of Mrs. Elfreeda Winnifred D' Souza3 the finding of the
Trial Court requiring the plaintiff to pay the deficit Court fee is
just and proper.
8. With regard to the vehement contention of
the petitioner that having regard to the Full Bench judgment in
the case of Venkatesh R. Desai1 the issue of Court fee and
valuation having been adjudicated upon at the preliminary
stage, the same is required to set arise, it is pertinent to note
that the plaintiff has not been able to point out that the order
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of the Trial Court with regard to the valuation and the Court fee
is erroneous on its merits. The Trial Court has adjudicated upon
the valuation and the amount of Court fee that is required to be
paid by the plaintiff. The only error that is pointed out is the
Trial Court ought not to adjudicated the same at a preliminary
stage.
9. Although it is the vehement contention of the
petitioner that the judgment of the full bench of this Court in
the case of Venkatesh R. Desai1 was brought to the notice of
the Trial Court prior to passing of the impugned order and
despite the same, the Trial Court has proceeded to pass the
impugned order and if such a course of action is not interfered
with, the same would become a precedent which will be
contrary to the judgment of the full bench of this Court in the
case of Venkatesh R. Desai1, it is pertinent to note that when
the preliminary issue was taken up for consideration, there is
nothing on record to demonstrate that the judgment of the full
bench was brought to the notice of the Trial Court. It is the
contention of the petitioner that along with a memo dated
10.09.2024, a copy of the full bench judgment of this Court in
the case of Venkatesh R. Desai1 was furnished. However, it is
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relevant to note that vide order dated 11.07.2023 itself the
Trial Court had ordered that Issue Nos.4, 6 and 7 are treated
as a preliminary issue and the matter was adjourned on various
dates of hearing i.e., 25.07.2023, 22.08.2023, 05.09.2023,
26.09.2023 and 10.10.2023 for hearing on the preliminary
issue and the matter was thereafter posted for orders.
10. In any event, in view of the peculiar facts and
circumstances of the present case, the Trial Court already
having undertaken the exercise of considering the rival
contentions of the parties and recording its finding regarding
the valuation and Court fee as a preliminary issue and since
there is no prohibition in the law laid down by the Full Bench of
this Court in the case of Ventakesh R Desai1 to adjudicate the
issue regarding Court fee as a preliminary issue, which exercise
already having been completed by the Trial Court wherein
considerable judicial time has been expended, which order is
otherwise not erroneous, the contention of the petitioners that
the said order is liable to be set aside merely on the ground
that it is done at a preliminary stage, is not liable to be
accepted and the extra-ordinary discretionary jurisdiction of
this Court contained under Article 227 of the Constitution of
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India is not liable to be exercised in the absence of any
demonstrable hardship to the petitioners.
11. Hence, the question of favourably considering
the relief sought for by the petitioners in these petitions does
not arise. Accordingly, the writ petitions are dismissed.
Sd/-
(C.M. POONACHA)
JUDGE
PNV
