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2003 DIGILAW 487 (KAR)

SONAWA v. MAHADEO

2003-06-20

M.S.RAJENDRA PRASAD

body2003
M. S. RAJENDRA PRASAD, J. ( 1 ) THIS Civil Revision Petition filed under Section 115 of C. P. C. by the plaintiff is directed against the order dated 4-1-2003 passed in O. S. No. 345/1999 on the file of the Prl. Civil Judge (Sr. Dn. }, jamakhandi, wherein the lower Court had directed the plaintiff to ascertain his share in the compensation amount and to pay court-fee within one month, challenging the legality and propriety of the same. ( 2 ) THE Court has heard the arguments of both sides and has perused the material on record. ( 3 ) THE learned counsel for revision petitioner strenuously contended that the material on record clearly shows that the order impugned is illegal and improper. The suit of the plaintiff was for partition of his definite share in the suit property and the suit had been valued under Section 35 (2) of the karnataka Court-Fees and Suits Valuation act ("the Act for short) and fixed court-fee had been paid accordingly. The learned counsel further contended that the trial court was not justified in calling upon the plaintiff to reascertain his share and pay the court-fee. The learned counsel further contended that the defendants had not taken any plea regarding payment of court-fee by the plaintiff. Hence, he prayed for allowing the revision petition. ( 4 ) ON the contrary, the learned counsel for respondents strenuously contended that the material on record clearly shows that the order impugned in the revision petition is legal and proper and the main grouse of the revision petitioner is that the order impugned had been passed in the absence of the plaintiff and the matter could be remanded to the trial Court with a direction to afford opportunity to the parties concerned and to pass suitable orders thereon. ( 5 ) THE Court has perused the material on record and has given its anxious thoughts over the rival contentions raised at the Bar. ( 6 ) FROM the material on record, it is seen that the revision petitioner had filed a suit against the defendants for partition and separate possession of her 1/12th share in the suit properties and the suit had been valued under Section 35 (2) of the Act and the maximum fixed court-fee of Rs. 200/- had been paid. ( 6 ) FROM the material on record, it is seen that the revision petitioner had filed a suit against the defendants for partition and separate possession of her 1/12th share in the suit properties and the suit had been valued under Section 35 (2) of the Act and the maximum fixed court-fee of Rs. 200/- had been paid. During pendency of the suit, on 4-1-2003, when the matter had been set down for issues, the learned Judge had passed the order impugned calling upon the plaintiff to ascertain her share in the compensation amount and pay the court-fee within one month. Feeling aggrieved by the said order, the plaintiff has approached this court. ( 7 ) PATENTLY, the suit properties consisted of lands and a house. In other words, immovable property was the subject-matter of the suit. It is specifically alleged in the plaint itself that the land had been notified for acquisition for Upper Krishna Project. Now, the only point that has to be considered by this court is whether the valuation of the suit made by the plaintiff was proper and whether the trial Court was justified in calling upon the plaintiff to ascertain her share in the compensation amount and to pay the court-fee accordingly. ( 8 ) FOR better appreciation of the facts in issue, it is necessary to mention the provisions of Section 35 (2) of the Act :"35. Partition suits. (1) xxx xxx (2) In a suit for partition and separate possession of joint family property or property owned, jointly or in common, by a plaintiff who is in joint possession of such property, fee shall be paid at the following rates rupees fifteen, if the value of plaintiffs share is Rs. 3. 000/- or less; rupees thirty, if the value is above Rs. 3,000/- but not more than Rs. 5,000/-; rupees one hundred, if the value is above rs. 5. 000/- but below Rs. 10. 000/-; and rupees two hundred, if the value is above rs. 10. 000/- and above. "on careful perusal of the said provision of law, it is clear that fixed court-fee is made payable in respect of the suit for partition and separate possession of joint family property or the property owned. 5. 000/- but below Rs. 10. 000/-; and rupees two hundred, if the value is above rs. 10. 000/- and above. "on careful perusal of the said provision of law, it is clear that fixed court-fee is made payable in respect of the suit for partition and separate possession of joint family property or the property owned. In the case on hand, it was alleged that the suit properties were the joint family properties and accordingly, the suit came to be valued under section 35 (2) of the Act and court-fee had been paid. Emphasis is laid on the phrase "joint family property or property" in the said provision of law. It is pertinent to mention that by use of the said phrase, it. is clear that all properties, whether movable or immovable, come within the said statutory provisions. In other words, the Legislature had not specifically laid down that if the property had been a movable property in the form of gold, cash or securities, the ad valorem court-fee had to be paid. In other words, irrespective of the nature of the property, whether movable or immovable, fixed court-fee has to be paid in respect of a suit valued under Section 35 (2) of the Act, which had been done in the present suit. It is also a settled elementary principle of law that the Courts of law in an adversary system of administration of justice will have to administer justice strictly in accordance with statute law and the precedent law in giving effect to the object of legislation in that arena. In view of the facts and circumstances of the case, if the Court were to take a different view as the learned Civil Judge has taken, in my opinion of this Court, it would lead to absurdity. It may not be out of context if it is mentioned in suits of this nature that both movable and immovable properties will have to be valued under Section 35 (2) of the Act and fixed court-fee, depending upon the valuation of the property, has to be paid, which has been done by the plaintiff. It may not be out of context if it is mentioned in suits of this nature that both movable and immovable properties will have to be valued under Section 35 (2) of the Act and fixed court-fee, depending upon the valuation of the property, has to be paid, which has been done by the plaintiff. However, the learned Civil Judge appears to have misdirected himself that the suit property had got converted into cash and as such the court-fee paid was insufficient and the same had to be paid valuing the suit within the provisions of Section 21 of the Act. The approach of the learned Civil Judge in this regard is erroneous and the same has to be interfered with by this Court. In view of these aspects, the Court is of the opinion that the order impugned is illegal and improper. ( 9 ) FOR the foregoing reasons, the revision petition is allowed, the order impugned is hereby set aside, and the trial Court is directed to dispose of the suit on merits in accordance with law. Petition allowed. --- *** --- .