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1973 DIGILAW 257 (KAR)

GANGAWWA v. GURUPPA SIDDAPPA BASAVADIER

1973-09-14

VENKATACHALAIAH

body1973
( 1 ) THIS appeal is filed against the order passed in R. A. 193 of 1971 on the file of the Civil Judge, Gadag, setting aside the decree passed in LCS. 66 of 1967 on ttya file of the Munsiff, Ron, and remanding the case for fresh disposal to the trial Court. ( 2 ) THE facts of the case are these: The plaintiff filed LCS. 66 of 1967 on the file of the Munsiff, Ron, for partition and separate possession of his share in the family properties. One of the pleas raised in the written statement by the defendants related to the question of valuation of the suit for purposes of court-fee and jurisdiction and the sufficiency of the court-fee paid on the plaint. On the above question, the trial Court framed issue No. 6 During the trial it was submitted on behalf of the defendants that they were not pressing their case in regard to the valuation of the suit and the sufficiency of court-fee paid on the plaint. Thereafter the trial court proceeded to decree the suit. In the course of its judgment, it recorded that no finding was called for on issue No. 6 as it was not pressed by by the Defendants. Aggrieved by the decree passed by the trial Court, the defendants filed Regular Appeal 193 of 1971 on the of the Civil judge, Gadag. During the course of the appeal, the lower appellate Court noticed that issue No. 6 relating to the question of valuation of the suit and sufficiency of court-fee paid on the plaint had not been disposed of by the trial Court as a preliminary issue as required by sub-sec. (2) of S. 11 of the mysore Court Fees and Suits Valuation Act, 1958. It therefore felt that the decree passed by the trial Court was vitiated and was liable to be set aside. Accordingly the decree of the trial Court was reversed and the suit was remanded to the trial Court for fresh disposal in accordance with how after recording a finding on issue No 6. While doing so, the lower appellate court has re-cast issue, No. 6 as follows : "whether the suit is properly valued for purpose of payment of court-fee and whether the court-fee paid is sufficient? " no other reason was given by the lower appellate Court for setting aside the findings. While doing so, the lower appellate court has re-cast issue, No. 6 as follows : "whether the suit is properly valued for purpose of payment of court-fee and whether the court-fee paid is sufficient? " no other reason was given by the lower appellate Court for setting aside the findings. recorded on other issues by the trial Court. ( 3 ) AGGRIEVED by the above order of remand, the plaintiff has filed this appeal. Sri Rama Bhat, the learned Counsel for the plaintiff, relied upon a decision of this Court in MSA. 97 of 1972 (1) decided on 28-3-1973 in which the facts were almost identical. In that case also the defendants having raised a plea regarding court-fee in their written statement, stated that they were not pressing the said plea during the course of the trial. The trial Court necorded the submission made on behalf of the defendants and deleted the said issue. In the appeal filed against the decree passed by the trial Court, the Civil Judge set aside the decree of the trial Court on the ground that the issue relating to court-fee had not been disposed of as a preliminary issue under S. 11 (2) of the Mysore Court Fees and Suits valuation Act, 1958, and remanded the case. In the appeal filed against the said order, Narayana Pai, CJ. observed as follows :"there is nothing in the appellate Court's judgment to show that in the absence of a plea by the defendants regarding court fees, the opinion of the trial Court regarding sufficiency of the Court fees is in the opinion of the appellate Court, wrong. When. the defendants themselves have withdrawn the plea, obligation, of the Court nevertheless to retain the issue on record and try it as a preliminary issue cannot, in my opinion, arise. If the appellate Court thought on the merits of the question as to sufficiency or otherwise of the court fee the fee actually paid on the plaint was incorrect, it had ample jurisdiction under sub-Sec. (4) of S. 11 of the Mysore Court Fees and Suits valuation Act, to rectify the defect. When that power is available, the order of remand, in my opinion, must be held to be unjustifiably. "i am in respectful agreement with the observations made by the learned judge in the above decision. When that power is available, the order of remand, in my opinion, must be held to be unjustifiably. "i am in respectful agreement with the observations made by the learned judge in the above decision. The lower appellate Court, was, therefore, wrong in setting aside the judgment and decree passed by the trial court and in remanding the case to the trial Court for fresh disposal. ( 4 ) THIS appeal, therefore, succeeds. The order of remand passed by the lower appellate Court is set aside and the case is remitted to the lower appellate court for fresh disposal in accordance with law. No costs. --- *** --- .