Sri Syed Ismail vs Sri Hanumanthappa
2025 Latest Caselaw 10245 Kant

Karnataka High Court

Sri Syed Ismail vs Sri Hanumanthappa on 14 November, 2025

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                                                           NC: 2025:KHC:46874
                                                         W.P. No.31613/2025


                   HC-KAR



                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                            DATED THIS THE 14TH DAY OF NOVEMBER, 2025
                                              BEFORE
                          THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
                             WRIT PETITION NO.31613/2025 (GM-CPC)


                   BETWEEN:

                   SRI. SYED ISMAIL
                   SON OF LATE SYED IBRAHIM
                   AGED ABOUT (41) YEARS
Digitally signed   R/A NO.437/B, 5TH CROSS
by RUPA V          NEAR BDA COMPLEX, HBR LAYOUT
Location: High     2ND BLOCK, BENGALURU-560043
Court Of
Karnataka                                                         ...PETITIONER
                   (BY SRI. SIRI RAJASHEKAR, ADV.,)


                   AND:

                   SRI. HANUMANTHAPPA
                   AGED ABOUT 70 YEARS
                   S/O MINNIGAPPA
                   R/A NO.17/8, 1ST MAIN ROAD
                   MARENAHALLI, VIJAYANAGAR
                   BENGALURU-560050.
                                                                 ...RESPONDENT
                        THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF THE
                   CONSTITUTION OF INDIA, PRAYING TO CALL FOR RELEVANT
                   RECORDS. ISSUE A WRIT OF APPROPRIATE NATURE TO SET ASIDE
                   THE ORDERS DTD 06.11.2024 AT ANNX-D PASSED, IN F.R.O.S.
                   NO.1526/2023 BY THE LEARNED PRL. SR. CIVIL JUDGE, BENGALURU
                   RURAL, BENGALURU AND THEREBY FIX A DATE FOR PETITIONER'S
                   APPEARANCE AND PAYMENT OF COURT FEE, AND PERMIT TO
                   PROSECUTE THE SUIT IN THE ENDS OF JUSTICE AND EQUITY.

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

                   CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
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                                                        NC: 2025:KHC:46874
                                                       W.P. No.31613/2025


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                                ORAL ORDER

This petition is filed seeking for the following reliefs:

"a) Call for relevant records.

b) Issue a writ of appropriate nature to set aside the orders dtd 06.11.2024 at Annx-D passed, in F.R.O.S. No.1526/2023 by the learned Prl. Sr. Civil Judge, Bengaluru Rural, Bengaluru and thereby fix a date for petitioner's appearance and payment of court fee, and permit to prosecute the suit in the ends of justice and equity."

2. Smt.Siri Rajashekar, learned counsel appearing

for the petitioner submits that the petitioner had initially

filed a suit for injunction and thereafter, sought

amendment for the relief of specific performance and the

said amendment was allowed. Thereafter, the said Court

has returned the plaint for want of jurisdiction to be

presented before the learned Senior Civil Judge. It is

submitted that the suit was re-presented before the

Principal Senior Civil Judge, Bengaluru Rural, Bengaluru.

The said suit was dismissed by the Principal Senior Civil

Judge on the ground that was no representation for the

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plaintiff and also taking note of the office objection raised

by the office that the Court fee and the process fee was

not paid. In support of her contentions, she placed

reliance on the decision of the Co-ordinate Bench in the

case of SYED ISMAIL Vs. C.SHIVARAJU1, wherein the

Co-ordinate Bench has considered a similar issue and set

aside the impugned order by directing to register the case

and proceed in accordance with law. Hence, she seeks to

allow the petition.

3. I have heard the arguments of the learned

counsel for the petitioner and perused the material

available on record. I have given my anxious

consideration to the arguments advanced by the learned

counsel for the petitioner.

4. The petitioner filed O.S.No.1554/2012 before

the II Additional Principal Civil Judge, Bengaluru Rural,

Bengaluru, for the relief of injunction. Thereafter, the

prayer for amendment of plaint was filed and allowed

W.P.No.22898/2025 dt. 15.9.25

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wherein an additional relief of specific performance of the

agreement dated 05.01.2012, was sought. The said

Court, by exercising the power under Order VII Rule 10 of

the Code of Civil Procedure, 1908 (hereinafter referred to

as 'the CPC') directed the office to return the plaint and

further directed the petitioner to present the same before

the Principal Senior Civil Judge, Bengaluru Rural,

Bengaluru. The records indicate that the papers were

forwarded to the Principal Senior Civil Judge, Bengaluru

Rural, Bengaluru. The said suit was re-numbered as

O.S.F.R.No.1526/2023. The impugned order indicates

that the office has raised an objection that the suit is for

the relief of declaration and injunction and hence, the

Court fee and process fee are not paid. Considering the

same, the said Court, on 06.11.2024 dismissed the suit,

recording the absence of the plaintiff. It is to be noticed

that after re-registration of the plaint, the Trial Court

ought to have issued a notice to the petitioner and sought

for curing the defect by making good the Court fee. It

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would be useful to refer to paragraphs 5 and 6 of the

aforesaid decision of the Co-ordinate Bench:

"5. Learned Senior Counsel places reliance upon the judgment rendered by the Coordinate Bench on identical circumstance in W.P.No.100870/2024 disposed on 14.02.2024. The Coordinate Bench has held as follows:

"A suit in O.S.(FR) No.10/2024 had been filed by the petitioner seeking for specific performance of contract dated 19.07.2021, which was valued by the petitioner under Section 40(A) of the Karnataka Court Fees and Suit Valuation Act (hereinafter referred to as 'the Act' for brevity) and a sum of Rs.2,67,125/- was paid as Court Fee for the relief of specific performance. In the said suit, an additional prayer having been sought for being a declaration that two other sale deeds are null and void and not binding on the plaintiff, the office of the Senior Civil Judge and JMFC Hagaribommanahalli put up an office note that Court Fee would also have to be calculated as regards the declaration of sale deeds to be null and void in terms of Sub- Section (2) of Section 38 of the Act, 1958.

4. The matter being adjourned to hear on the same noticing that the petitioner was not represented, was adjourned to 23.01.2024 and on that date noticing that plaintiff was again not represented, the suit came to be dismissed as not maintainable. It is challenging same that the aforesaid reliefs have been sought for.

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5. The issue of Court Fee being appropriate or not is not one which touches on the maintainability of a suit. At the most, the aspect of proper Court Fee not being paid would be one which is to be determined in terms of Order 7 Rule 11(b) of the Code of Civil Procedure, which provides for - where the relief claimed is undervalued, the plaintiff on being required by the Court to correct the valuation within the time fixed by the Court, failing to do so, then in that event the plaint could be rejected. It is this principle which the Trial Court ought to have applied, calculated the deficit Court Fee and called upon the plaintiff to make payment of the said deficit Court Fee within the time fixed by the Court and it is only in the - 5 - HC-KAR NC:

2025:KHC:36685 WP No. 22898 of 2025 event of the said deficit Court Fee not being paid, then the plaint could be rejected.

6. In the present case, even Order 7 Rule 11(b) of CPC would not be applicable for the reason that the plaintiff has sought for the relief of specific performance as also for declaration of sale deeds to be null and void and insofar as specific performance is concerned, proper Court Fee has been paid since no objection has been raised in that regard by the office of the Court.

7. Such being the case, there can be no partial rejection of the plaint. At the most, the relief sought for could have been refused by the Court on account of nonpayment of Court Fee which would have to be done after registering the case and following the due procedure. In the present case, the suit is dismissed as not maintainable on account of non-payment of

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Court Fee in terms of Sub-Section (2) of Section 38 of the Act, 1958, which for the aforesaid reason is not permissible. Hence I pass the following:

ORDER

i) Writ petition is allowed.

ii) A certiorari is issued, t he order dated 23.01.2024 passed by Senior Civil Judge in JMFC, Hagaribommanahalli in O.S.(FR) No.10/2024 is set-aside. The suit in O.S.(FR) No.10/2024 is restored. The Trial Court is directed to register the case and proceed with the said case in terms of the observations made above."

6. In the light of the judgment of the Coordinate Bench quoted supra, the petition deserves to succeed as the Coordinate Bench has considered the entire spectrum of law."

5. In view of the aforesaid observation of the Co-

ordinate Bench, this petition also deserves to be allowed.

6. Accordingly, the writ petition is allowed.

The impugned order dated 06.11.2024 passed on

O.S.F.R.No.1526/2023 by the Principal Senior Civil Judge,

Bengaluru Rural, Bengaluru, is set aside.

The petitioner shall appear before the Trial Court on

09.12.2025 and make good the necessary Court fee.

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The Trial Court is directed to register the case and

proceed with the said case in terms of the observations

made above.

Sd/-

(VIJAYKUMAR A. PATIL) JUDGE

RV