Karnataka High Court

Vijayalakshmi vs Sripadarenu on 3 March, 2025

Author: M.G.S. Kamal

Bench: M.G.S. Kamal

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                                            WP No. 11618 of 2020




            IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                  DATED THIS THE 3RD DAY OF MARCH, 2025

                                  BEFORE
                   THE HON'BLE MR JUSTICE M.G.S. KAMAL
                 WRIT PETITION NO. 11618 OF 2020 (GM-CPC)

            BETWEEN:

            1.   MRS. VIJAYALAKSHMI
                 W/O LATE DR T THIMMAIAH
                 AGED ABOUT 80 YEARS,
                 RESIDING AT NO.18/2
                 3RD CROSS,
                 NANDI DURGA ROAD,
                 BANGALORE-560 046.

            2.   MR T KENGAL MURTHY
                 S/O LATE DR T THIMMAIAH
                 AGED ABOUT 59 YEARS,
                 RESIDING AT NO.18/2
                 3RD CROSS,
                 NANDI DURGA ROAD,
Digitally        BANGALORE-560 046.
signed by
ROOPA R U
Location:
            3.   MR T VENKATAVARDHAN
HIGH             S/O LATE DR T THIMMAIAH
COURT OF         AGED ABOUT 57 YEARS,
KARNATAKA        RESIDING AT NO.29,
                 5TH MAIN,
                 JAYAMAHAL EXTENSION
                 BANGALORE-560 006.

                 THE ADDRESS OF ALL 3 PETITIONERS SHONW
                 INCORRECTLY IN THE PLAINT AS
                 R/AT APARTMENT NO.A-1, NO. 258
                 1ST CROSS, BINNAMANGALA LAYOUT
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                                   WP No. 11618 of 2020




   DEFENSE COLONY, HAL II STAGE
   INDIRANAGAR
   BENGALURU - 560 038.
                                     ...PETITIONERS
(BY SRI. SURAJ SAMPATH .,ADVOCATE)(VC)


AND:

SRIPADARENU
S/O LATE DR. T. THIMMAIAH
AGED ABOUT 61 YEARS
R/AT C-2, SWAPNA LOK
NO.28, AGA ABBAS ALI ROAD
HALASURU, BANGALORE - 560 042.
                                        ...RESPONDENT

(BY   SRI.  ABHINAV    R     AND   SWATHI      SUKUMAR
.,ADVOCATE)

    THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
IMPUGNED ORDER DATED 12.03.2020 ANNEXURE-A PASSED
BY THE HONBLE III ADDITIONAL CITY CIVIL AND SESSIONS
JUDGE AT BANGALORE CITY (CCH-25) IN O.S.NO.268/2016 ON
THE PRELIMINARY ISSUE OF COURT FEES AND ETC.


    THIS PETITION, COMING ON FOR ORDERS, THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:


CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL
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                                          WP No. 11618 of 2020




                           ORAL ORDER

Petitioners are the defendant Nos.1 to 3 in O.S. No.

268/2016 filed by respondent-plaintiff for relief of partition and

separate possession of his 1/4th share and for enquiry into

mesne profits in respect of 7 items of suit schedule properties.

2. The contention of the respondent-plaintiff in the suit is

that the suit schedule properties belonged to one Dr. T.

Thimmaiah, who is none other than the father of the

petitioners-defendants and the respondent-plaintiff herein and

that the said Dr. T. Thimmaiah passed away on 17.08.2014

leaving behind the respondent/plaintiff and the

petitioners/defendants as his class-I heirs each being entitled

for 1/4th share therein.

3. The suit is valued under sub-section (2) of Section 35

of the Karnataka Court Fee and Suit Valuation Act, 1958 and

the fixed Court fee as contemplated thereunder has been paid.

Written statement has been filed by the petitioners-defendants

raising various contentions including the valuation made by the

plaintiffs and the Court fee paid therein. The primary

contention raised as regards the Court Fees is concerned, lack

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of pleading in the plaint by the respondent/plaintiff regarding

he being in joint possession of the suit properties. It is

contended that suit ought to have been valued under sub-

section (1) of Section 35, since joint possession is not pleaded.

4. The Trial Court framed the issues. Additional issue

No.1 is with regard to contention raised by the

petitioners/defendants with regard to sufficiency of the Court

Fee paid by the respondent/plaintiff on the plaint. It appears

upon the request made by the petitioners/defendants, the said

issue was tried as a preliminary issue, evidence was led in and

by the impugned order the Trial Court answered the said issue

in the negative, holding that the Court Fee paid by the

respondent/plaintiff under sub-section (2) of Section 35 of the

Karnataka Court Fee and Suit Valuation Act, 1958 was proper

and sufficient. Being aggrieved by the same,

petitioners/defendants are before this Court.

5. Learned counsel for the petitioners/defendants

appearing through video conferencing taking this Court through

the records and also the plaint averments and relying upon the

provisions of Section 11 of the Karnataka Court Fee and Suit

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Valuation Act, 1958 vehemently submits that when it comes to

the issue with regard to payment of Court fee, it is mandatory

on the part of the Court to adjudicate the same at the first

instance upon the sufficiency of Court fee before proceeding

further in the matter. He submits that the legislation being

clear in this aspect of the matter there cannot be any leniency

and no discretionary exercise of power can be shown under the

circumstances. He refers to the judgment of the Hon'ble Apex

Court in the case of Municipal Corporation Gwalior Vs.

Puran Singh and others reported in (2015) 5 SCC 725

pointing out to paragraph No.17 of the said judgment, he

insists that unless and until plaintiffs categorically and explicitly

aver that he is in joint possession of the property, the valuation

cannot be contemplated as done in the instant case. He further

submits that the petitioners/defendants has not been heard and

the Trial Court has disposed of the said issue during the Covid-

19 pandemic period and the petitioners herein were not

provided sufficient opportunity to canvass their case effectively.

Hence seeks for setting aside of the impugned order.

6. Per contra, learned counsel for the respondent-plaintiff

refers to paragraph No.6 of the plaint and also to the contents

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of valuation slip. He submits plaintiff is claiming his share in

the property in terms and in furtherance to the provisions of

Section 8 of the Hindu Succession Act, 1956, being the class-I

heir, which right he gets upon the demise of his father. He

submits that in any case in the valuation slip plaintiff has

specifically averred of he being in joint possession of the

property. He also refers to the deposition of the defendant

No.2 recorded on 17.01.2020, wherein it is admitted that in the

valuation slip column No.4 it is stated that the plaintiff and

defendant Nos.1 to 3 were in joint possession and enjoyment of

the suit schedule properties.

7. Learned counsel for the respondent-plaintiff further

relies upon the by Judgment of Full Bench of this Court in the

case of Venkatesh R. Desai Vs. Smt. Pushpa Hosmani and

others reported in AIR 2019 KAR 47. Thus relying upon the

above learned counsel submit that no error or illegality can be

found with the order passed by the Trial Court warranting

interference at the hands of this Court.

8. Heard and perused the records.

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9. Issue in controversy is limited with regard to the

valuation of the suit; there is no dispute with regard to the

relationship between the parties; that they being the legal heirs

of Dr. T. Thimmaiah. The case of the respondent/plaintiff is that

suit schedule properties belonged to said Dr. T. Thimmaiah and

the respondent/plaintiff and the petitioners/defendants being

the legal heirs became entitled for equal share therein, upon

his demise on 17.08.2014. Though various contentions are

taken up by the defendants with regard to the very claim of the

plaintiff of the property belonging to said Dr. T. Thimmaiah, as

regards the court fee is concerned, it is vehemently contended

that the plaintiff has not averred in the plaint that he being in

joint possession of the property enabling him to value the suit

under sub-section (2) of Section 35 of the Karnataka Court Fee

and Suit Valuation Act, 1958. Heavy reliance is placed by the

learned counsel for the petitioners/defendants on to Section 11

of the Karnataka Court Fee and Suit Valuation Act, 1958 as well

as to the paragraph No.17 of the judgment of the Hon'ble Apex

Court in Municipal Corporation Gwalior (Supra).

10. Before adverting to the said contentions, it is

appropriate to refer to the judgment passed by the Full Bench

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of this Court in the case of Venkatesh R. Desai (supra).

Questions involved in the said judgment is with regard to

interpretation of provisions of Section 11 of the Karnataka

Court Fee and Suit Valuation Act, 1958, that is whether the

issue arising in respect of payment of the Court fee has to be

tried as a preliminary issue or could it be tried along with other

issues in all the cases and every circumstances? After

adverting to various judgments of the Hon'ble Apex Court on

the issue involving to the payment of Court fee to be

determined under Section 11 of the Act, 1958, At paragraph

No.35 the Full Bench of this Court has arrived at the following

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.''

11. It is necessary also to refer to Section 11 of the Act,

1958 which reads as under:

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'' 11. Decision as to proper fee in courts.

(1) In every suit instituted in any court, the court shall, before ordering the plaint to be registered, decide on the materials and allegations contained in the plaint and on the materials contained in the statement, if any, filed under section 10, the proper fee payable thereon, the decision being however subject to review, further review, and correction in the manner specified in the succeeding sub-sections.

(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.

(3) A defendant added after issues have been framed on the merits of the claim may, in the written statement filed by him, 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, and if the court finds that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient, the court shall follow the procedure laid down in sub-section.

(2).Explanation. - Nothing in this sub-section shall apply to a defendant added as a successor or a representative in interest of a defendant who was on record before issues were framed on the merits of the claim and who had an opportunity to file a written statement pleading that the subject-matter of the suit was not properly valued or t hat the fee paid was not sufficient.

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(4) (a)Whenever a case comes up before a court of appeal, it shall be lawful for the court, either on its own motion or on the application of any of the parties, to consider the correctness of any order passed by the lower court affecting the fee payable on the plaint or in any other proceeding in the lower court and determine the proper fee payable thereon.

Explanation. - A case shall be deemed to come before a court of appeal even if the appeal relates only to a part of the subject-matter of the suit.

(b)If the court of appeal decides that the fee paid in the lower court is not sufficient, the court shall require the party liable to pay the deficit fee within such time as may be fixed by it.

(c)If the deficit fee is not paid within the time fixed and the default is in respect of a relief which has been dismissed by the lower court and which the appellant seeks in appeal, the appeal shall be dismissed, but if the default is in respect of a relief which has been decreed by the lower court, the deficit fee shall be recoverable as if it were an arrear of land revenue.

(d)If the fee paid in the lower court is in excess, the court shall direct the refund of the excess to the party who is entitled to it.

(5) All questions as to value for the purpose of determining the jurisdiction of courts arising on the written statement of a defendant shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim.

Explanation. - In this section, the expression "merits of the claim" refers to matters which arise for determination in the suit, not being matters relating to the frame of the suit, misjoinder of parties and causes of action, the jurisdiction of the court to entertain or try the suit or the fee payable, but inclusive of matters arising on pleas of resjudicata, limitation and the like.''

12. The aforesaid conclusion arrived at by the Full Bench

of this Court read in the light of Section 11 of the Act, 1958

makes it clear that it is not in every case the issue with regards

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to the payment of court fee has to be tried as a preliminary

issue. It is clear as and when the issue of payment of Court

fee would go to the root of pecuniary jurisdiction of the Court

trying the suit, necessary that such issue shall be adjudicated

as a preliminary issue. If the Court has unlimited pecuniary

jurisdiction, such issue even if it is on the question of payment

of the Court fee, can be tried along with the other issues

involved in the suit is the conclusion arrived at.

13. Facts of the present case read in the light of the

aforesaid judgment makes it clear that the suit which is

pending consideration before the Trial Court, which is having

unlimited pecuniary jurisdiction is not disable to take up the

matter with regard to the issue of payment of court fee along

with other issues. More particularly, when the complexity of

the matter is putforth in the written statement denying the very

claim of the respondent/plaintiff of the suit schedule properties

being the exclusive property of his father. It is only thereafter

the valuation could be arrived at by the Court.

14. Though in the instant case, the Trial Court has held

that the Court fee has been paid sufficient, in view of the fact

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that the respondent/petitioner claimed that he was not given

sufficient opportunity of being heard and also in view of the fact

that the averments made by the petitioners/defendants to the

nature of the property, may also have to be taken into

consideration with regard to the Court fee. This Court is of the

considered view that the impugned order be set aside and the

Trial Court be directed to consider the said issue along with the

main/other issues providing an opportunity to the

petitioners/defendants to advert to their case during the trial.

15. Reliance placed on by the learned counsel for the

petitioner to the judgment of the Hon'ble Apex Court in the

case of Municipal Corporation Gwalior (supra) at paragraph

No.17 is inapplicable inasmuch as the said judgment has been

rendered in the context of a claim to a joint family property.

Invariably, in a suit for joint family property averment with

regard to joint possession is indispensable. In the instant case

as noted above the plaintiff has filed the suit seeking relief

claiming to be the class-I heir under Section 8 of the Hindu

Succession Act. Relevant also to refer to the judgment of the

Hon'ble Apex Court in the case of Jagannath Amin Vs.

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Sitaram dead by Lrs reported in 2007 1 SCC 694, wherein

at paragraph No.8 the Hon'ble Apex Court has held as under:

''8. ..... The general principle of law is that in the case of co-owners, the possession of one is in law- possession of all, unless ouster or exclusion is proved. To continue to be in -joint possession in law, it is not necessary that the plaintiff should be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession. Before the plaintiffs could be called upon to pay court fee under Section 37(1) of the Act on the ground that they had been excluded from possession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been "excluded" from joint possession to which they are entitled to in law. The averments in the plaint that the plaintiff could not remain in joint possession as he was not given any income from the joint family property would not amount to his exclusion from possession. We are unable to read into the plaint a clear and specific admission that the plaintiff had been excluded from possession.''

16. Thus possession of one co-owner is the possession of

other is sufficient in law in the instant case since the suit is one

under Section 8 and in the absence of any averments with

regard to exclusion of the plaint if, this Court do not see the

necessity of adverting to said issue, the same is left at this

juncture to be adjudicated by the Trial Court while determining

the issue along with the other issues.

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17. With the above observation, following:

ORDER

(i). Petition is disposed of.

(ii). Impugned order dated 12.03.2020

produced at Annexure-A passed by the Trial

Court is set-aside.

(iii). The matter is remitted to the Trial Court to

reconsider the said issue along with other main

issues.

(iv). This order is restricted only to the extent

of determination of issue on Court Fee as a

preliminary issue. No opinion with regard to

merits of the case is expressed in this case.