Judgment :- Ashok B. Hinchigeri, J As Writ Petition Nos.9764/2008 and 9878/2008 arise from identical suits and as the issues to be answered in both the cases are the same, the two petitions are clubbed, heard together and are being disposed of by this common order. The facts are being narrated with reference to Writ Petition No.9764/2008. 2. The petitioner has raised the challenge to the order, dated 3.6.2008 (Annexure-H) passed by the Court of the Principal Civil Judge (Sr.Dn.) and C.J.M., Shimoga on I.A.No.3 in O.S.No.217/2002. 3. The respondent No. 1 filed the suit seeking the relief of declaration, for the recovery of possession of the schedule property and for damages. The petitioner (defendant No. 1 in the suit) filed the written statement denying the plaint averments contending that the sale of the schedule property by the defendant Nos.2 and 3 in his favour is valid. The petitioner has also raised a specific plea in paragraph No.11 of the written statement that the Court fee paid is inadequate. The sum and substance of the objection with reference to the Court fee is that the suit ought to have been valued as per the provisions contained in Sections 24(a) and not 24(d) of the Karnataka Court-Fees and Suits Valuation Act, 1958 (K.C.F. and S.V.Act) as was done by the first respondent-plaintiff. 4. Based on the rival pleadings, the Trial Court framed seven issues. The matter came to be posted for the first respondent–plaintiff’s evidence on 19.10.2005 and thereafter it appears that the case was being adjourned from time to time for his evidence. The case was posted for the examination-in-chief and thereafter cross-examination of the respondent (PW1) ON 27.6.2007 AND 19.7.2007 respectively. On 19.7.2007, the petitioner filed I.A.No.2 requesting the Court to frame the following additional issues; “1. Whether the plaintiff proves that the District Automobile Workers Association is still in existence and the secretary S.L.Dasappa has locus standi and authority to file suit? 2. Whether the plaintiff proves that the suit relief is properly valued and Court fee paid on the plaint is sufficient? 3. Whether the plaintiff proves that the suit is filed well within time?” 5. On 23.8.2007, the Trial Court heeded to the request of the petitioner and framed the aforesaid sought additional issues. Thereafter, the petitioner filed I.A.No.3 on 20.9.2007 requesting the Trial Court to try additional issue No.2 and 3 as preliminary issues. 3. Whether the plaintiff proves that the suit is filed well within time?” 5. On 23.8.2007, the Trial Court heeded to the request of the petitioner and framed the aforesaid sought additional issues. Thereafter, the petitioner filed I.A.No.3 on 20.9.2007 requesting the Trial Court to try additional issue No.2 and 3 as preliminary issues. On granting a number of adjournments, the Trial Court at last rejected I.A.No.3 by its order, dated 3.6.2008. Aggrieved by the aforesaid order, this petition is instituted. 6. Sri S.V. Prakash, the Learned Counsel for the petitioner submits that the words used in Section 11 “before evidence is recorded” have to be liberally construed to mean the completion of the recording of evidence; only when the suit documents are produced and marked, the evidence can be said to have been recorded completely. There is no legal impediment in answering the Court fee issue first any time before the closure of evidence. 7. The learned Counsel further submits that if the Legislature has in mind, the commencement of the evidence or trial, it would have said so. He brings to my notice the proviso inserted to Order 6 Rule 17 of C.P.C., wherein the words “the trial has commenced” are used. He sought to draw support from the judgment of the Honourable Supreme Court in the case of RAMNARAYAN MOR AND ANOTHER versus THE STATE OF MAHARASHTRA AIR 1964 SC 949 . He read out its Head Note ‘C’, which is extracted hereinbelow: “(c) Criminal P.C. (1898), S.207A (6) – Use of word “evidence” tested in light of its definition in Section 3 of Evidence Act. Per Majority – By the Evidence Act which applies to the trial of all criminal cases, the expression “evidence” is defined in Section 3 as meaning and including all statements which the Court permits or requires to be made before it by witnesses in relation to matters of fact under enquiry and documents produced for the inspection of the Court. There is no restriction in this definition to documents which are duly proved by evidence. Normally in a criminal trial, the Court can proceed on documents which are duly proved, or by the rules of evidence made admissible without formal proof, but under the amended Code the Legislature has in Section 207A prescribed a special procedure in proceedings for commitment of the accused. Normally in a criminal trial, the Court can proceed on documents which are duly proved, or by the rules of evidence made admissible without formal proof, but under the amended Code the Legislature has in Section 207A prescribed a special procedure in proceedings for commitment of the accused. The record consists of the oral evidence recorded under sub-Section (4) of Section 207A and the documents referred to in Section 173(4), and it would be difficult to regard only those documents which are duly proved, or which are admissible without proof as “evidence” within the meaning of clause (6) of S.207A and not the rest. 8. Sri Prakash has also relied on the decision of this Court in the case of THE KARNATAKA THEOSOPHICAL FEDERATION (R) versus BALAKRISHNA ASHRAMA ILR 1999 KAR 2930 for buttressing his submission that Section 11 mandates that all questions relating to Court fee be heard and decided before the evidence is recorded. 9. Sri Prakash has also relied on the decision of the Honourable Supreme Court in the case of BALDEV SINGH & OTHERS versus MANOHAR SINGH AND ANOTHER., AIR 2006 SC 2832 to canvass the point that the commencement of trial must be understood in the limited sense, as meaning, final hearing of the suit, examination of witnesses, filing of documents and addressing of arguments. If all the provisions are to be construed harmoniously, the only plausible interpretation that can be put on the provisions contained in Section 11 of the Act is that, once a plea is taken in the written statement regarding the sufficiency of the Court fee paid, the Court is obliged to answer the same, no matter, at which stage of the proceedings the issue on the payment of Court fee is raised. The restriction imposed is only regarding the raising of the issue of the Court fee and not the obligation of the Court to answer the same. 10. Sri Prakash attacks the impugned order on another ground also. The additional issue No.3 on the point of limitation has not invited and received the attention of the Trial Court in any way. 11. Sri K. Hanumantharayappa, the Learned Counsel appearing for the respondent No.1 submits that if the words, ‘before evidence is recorded’ are understood as closure of evidence, it amounts to re-writing the statute as such. He submits that the petitioner has waived his right and shown acquiescence. 11. Sri K. Hanumantharayappa, the Learned Counsel appearing for the respondent No.1 submits that if the words, ‘before evidence is recorded’ are understood as closure of evidence, it amounts to re-writing the statute as such. He submits that the petitioner has waived his right and shown acquiescence. Nothing prevented the petitioner from requesting the Court to take up the additional issues first before the first respondent entered the witness box. He also takes exception to the petitioner’s conduct in dragging on the matter. 12. Sri K.M. Nataraj, the Learned Additional Advocate General has made the following submissions: a) The finding regarding the payment of Court fee does not attain finality at any stage of the suit proceedings. Under Section 11(1) of the ‘K.C.F. and S.V. Act’, the decision on the Court fee payable is always subject to review and further review and correction in the manner specified in sub-Sections 2 to 5 of Section 11. b) Under Section 11(2) of the K.C.F. and S.V. Act, once a plea is taken in the written statement, the Court fee payable has to be determined. c) If the Court proceeds to record the evidence without giving its decision on the Court fee payable, it does not mean that the evidence so collected or adduced has to be wiped out. For the fault of the Court, a party should not suffer any inconvenience. According to the Learned Additional Advocate General, in a case of this nature, the Trial Court may have to be directed to first pass an order on the Court fee payable and thereafter resume the suit proceedings at the stage at which it was interrupted. d) The Additional Advocate General submits that the Division Bench decision of this Court in the case of VEERAGOUDA & OTHERS versus SHANTAKUMAR @ SHANTAPPAGOWDA ILR 2009 KAR 887 is squarely applicable to the facts of this case. 13. Having regard to the importance of the matter, the Court also thought it fit to call upon the other Learned members of the bar to join the debate, if they so desire. 14. Sri Ramesh Chandra, the Learned Counsel has made the following submissions: a) The K.C.F. and S.V. Act is a fiscal statute. Therefore, its provisions are to be construed strictly. As a general rule, the issue of Court fee has to be decided first, even if it is the mixed question of fact and law. 14. Sri Ramesh Chandra, the Learned Counsel has made the following submissions: a) The K.C.F. and S.V. Act is a fiscal statute. Therefore, its provisions are to be construed strictly. As a general rule, the issue of Court fee has to be decided first, even if it is the mixed question of fact and law. The partition suits fall in an exceptional category, where a finding on whether a party is in joint possession or not has to be delivered only on the conclusion of the trial. Therefore, in partition suits, the evidence required to be collected is the same for answering the issue over Court fee and other issues. b) The Learned Counsel brings to my notice the judgment of the Honourable Supreme Court in the case of ORISSA STATE WAREHOUSING CORPORATION, JAIPUR versus COMMISSIONER OF INCOME TAX AIR 1999 SC 1388 . The relevant paragraph of the said judgment is extracted hereinbelow: “Moreover, a fiscal statute shall have to be interpreted on the basis of the language used therein and not dehors the same. No words ought to be added and only the language used ought to be considered so as to ascertain the proper meaning and intent of the legislation. The Court is to ascribe natural and ordinary meaning to the words used by the Legislature and the Court ought not, under any circumstances, to substitute its own impression and ideas in place of the legislative intent as is available from a plain reading of the statutory provisions.” C) The Learned Counsel gives the meaning of the “first hearing of the suit” used in Section 11(2) of K.C.F. and S.V. Act with reference to the definition contained in Rule 3 (3) of the Karnataka Civil Rules of Practice, 1967 is defined therein as; “First Hearing” –in relation to a suit means the date on which the defendant is summoned to appear for settlement of issues or for final hearing and includes any other adjourned date for the above purpose. d) Sri Ramesh Chandra submits that Section 11(2) of the K.C.F. and S.V. Act corresponds to the provisions contained in Section 12(2) of the Tamil Nadu Court-fees and Suits Valuation Act, 1955. He brings to my notice the decision of the Madras High Court in the case of R.C.SUNDRAVALLI versus T.D.SHAKILA AIR 2002 MADRAS 82. The relevant paragraph of the said judgment is extracted herein below: “17. He brings to my notice the decision of the Madras High Court in the case of R.C.SUNDRAVALLI versus T.D.SHAKILA AIR 2002 MADRAS 82. The relevant paragraph of the said judgment is extracted herein below: “17. Any way, the narration of events shows that the question relating to Court-fee has been raised not before the first hearing of the suit nor before evidence was recorded on the merits of the claim. The Learned Counsel for the petitioner repeatedly urged that there is no delay on his part because additional issues were framed only on 20-9-99 and the application had been filed on 22-9-99. But paragraph 3 of the counter filed by the respondent shows that even the question relating to the payment of Court fees itself was raised in the additional statement only after the trial had commenced and P.W.1’s evidence has been record (Emphasis supplied). This is not contradicted. So it is clear that it is belated. The delay is not with reference to the date on which additional issues were framed. The delay is with reference to the stage at which it is raised in view of the provisions of Section 12(2) of the Act. I see no reason to interfere with the order of the Court below. The C.R.P. is dismissed with costs. C.M.P.5690 of 2001 is closed.” e) According to him, the mandate of law is that the plea of insufficiency of Court fee has to be raised before the first hearing date. Once such a plea is raised, whether there is a preliminary issue or not, the Court has to answer that question first. He submits that Section 11 is a complete code by itself envisaging the determination and redetermination of the Court fee at four different stages-(a) on the presentation of the plaint (b) on the filing of the written statement (c) on the impleadment of a party to the suit proceedings and (d) at the appellate stage. As the language employed in Section11 is clear, there may not be any need to go to the legislative intent. In this regard, he placed before me the decision in the case of M/s. I.T.C. LTD., versus COMMISSIONER OF CENTRAL EXCISE, NEW DELHI AND ANOTHER AIR 2005 SC 1370 . As the language employed in Section11 is clear, there may not be any need to go to the legislative intent. In this regard, he placed before me the decision in the case of M/s. I.T.C. LTD., versus COMMISSIONER OF CENTRAL EXCISE, NEW DELHI AND ANOTHER AIR 2005 SC 1370 . He read out Head Note (B), which is extracted hereinbelow: “(B) Interpretation of Statutes -Fiscal statute -Words used, to be construed strictly as per ordinary meaning -Reference to legislative intent to be made only if language is ambiguous -Exceptions to this rule stated. The general rule of statutory construction of fiscal statue is that words have to be construed strictly according to their ordinary and natural meaning, particularly when the statutes a fiscal one irrespective of the object with which the provision was introduced. Of course if there is ambiguity in the statutory language, reference may be made to the legislative intent to resolve the ambiguity. But if the statutory language is unambiguous then that must be given effect to. The legislature is deemed to intend and mean what it says. The need for interpretation arises only when the words used in the statute are, on their own terms ambivalent and do not manifest the intention of the legislature.” f) The embargo placed by the Legislature is on the raising of the plea after the first hearing date. But, once the plea is raised the Court is duty bound to deliver its decision on the parties’ liability to pay the Court fee. 15. Sri A.V.Gangadharappa, the Learned Counsel has made the following submissions:- a) He makes a subtle distinction between lack of jurisdiction and inherent lack of jurisdiction. If the Court fee is linked with the jurisdictional issue, it has to be decided first. Otherwise, the proceedings on reaching the culmination have the risk of being declared as the ones without jurisdiction. b) The additional issue No.2 in the instant case on the sufficiency or otherwise of the Court fee paid is virtually in the nature of a preliminary issue, though it may not have been termed so. He therefore contends that it has to be answered first. 16) Sir Srinivasaiah, the Learned Counsel submits that the use of past tense ‘recorded’ cannot but be taken as the closure of the evidence, otherwise the Legislature would have used the words ’before recording the evidence or before the commencement of trial’. He therefore contends that it has to be answered first. 16) Sir Srinivasaiah, the Learned Counsel submits that the use of past tense ‘recorded’ cannot but be taken as the closure of the evidence, otherwise the Legislature would have used the words ’before recording the evidence or before the commencement of trial’. He also brings to my notice the provisions contained in Order 14 Rule 2(b) of C.P.C. in this regard. 17) Sri Sudish Pai, the Learned Counsel, has made the following submissions: a) The decision on the payment of Court fee may not be final, as the provisions contained in Section 11(1) of K.C.F. and S.V.Act state that the said decision is subject to review, further review and correction. Section 11(4)(a) of the said Act empowers the Appellate Court to consider the correctness of the order passed by the Lower Court affecting the fee payable on the plaint and determine the proper fee payable thereon. The same can be done by the Appellate Court either on its own motion or on the application of any of the parties. b) Sri Pai brings to may notice the Honourable Supreme Court’s judgment in the case of HIRA LAL PATNI versus SRI KALI NATH AIR 1962 SC 199 , wherein it is held that the consent or waiver can cure defect of jurisdiction, but not the inherent lack of jurisdiction. In the instant case, the parties appear to have agreed to the Trial Court’s taking up the matter for evidence without insisting for the finding on the issue pertaining to the payment of Court fee. c) According to Sri Pai whether proper Court fee is paid on a plaint is primarily a matter between the plaintiff and the State. For canvassing this point, he relied on the judgment of the Honourable Supreme Court in the case of RATHNAVARMARAJA versus SMT. VIMLA AIR 1961 SC 1299 . The said case arose under the Madras Court fees and Suits Valuation Act, 1955. In the said case, the Honourable Supreme Court has this to say: “2. The Court-fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. The said case arose under the Madras Court fees and Suits Valuation Act, 1955. In the said case, the Honourable Supreme Court has this to say: “2. The Court-fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. By recognising that the defendant was entitled to contest the valuation of the properties in dispute as if it were a matter in issue between him and the plaintiff and by entertaining petitions preferred by the defendant to the High Court in exercise of its revisional jurisdiction against the order adjudging Court-fee payable on the plaint, all progress in the suit for the trial of the dispute on the merits has been effectively frustrated for nearly five years. We fail to appreciate what grievance the defendant can make by seeking to invoke the revisional jurisdiction of the High Court on the question whether the plaintiff has paid adequate Court-fee on his plaint is primarily a question between the plaintiff and the State. How by an order relating to the adequacy of the Court-fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate…….” (d) Sri Pai submits that this Court’s jurisdiction under Article 227 of the Constitution of India is invokable only for correcting the errors of law, resulting in injustice to the parties. 18. Sri Raghupathy, the Learned Counsel submits that once the recording of the evidence has begun, the insistence for answering the Court fee issue first is not tenable. So long as the issue of Court fee does not touch on the jurisdiction of the Court, the trial cannot be halted in the middle for answering the Court fee issue. He also brings to my notice this Court’s decision in the case of A. MADHAVA HEGDE versus RAJENDRA S. REVANKAR ILR 2000 KAR 1267 wherein it is held that the issue relating to Court fee shall have to be tried as preliminary issue. 19. On hearing the Learned Advocates, the question that falls for my consideration is: “Whether the Trial Court is right in proceeding to record the evidence on the merits of the case without giving its finding on the issue of the payment of Court fee (additional issue No. 2)? 20. 19. On hearing the Learned Advocates, the question that falls for my consideration is: “Whether the Trial Court is right in proceeding to record the evidence on the merits of the case without giving its finding on the issue of the payment of Court fee (additional issue No. 2)? 20. To answer this question, it is necessary to refer to the provisions contained in Section 11(2) of the Karnataka Court-Fees and Suits Valuation, Act, 1958, which reads as follows: “11. Decision as to proper fee in Courts: (1)…… (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.” 21. The perusal of the afore-extracted provisions reveal that once the plea is taken by the defendant in his written statement that the subject matter of the suit has not been properly valued or that the Court fee paid is not sufficient, it is incumbent on the Court to determine the Court fee that is payable. I am afraid that the Court cannot skip the issue of Court fee and proceed to record the evidence on the merits of the case. 22. As held by this Court in the case of LAXMI COTTON COMPANY AND ANOTHER (SUPRA), the issue relating to the court fee has to be treated as a preliminary issue. I am afraid that the Court cannot skip the issue of Court fee and proceed to record the evidence on the merits of the case. 22. As held by this Court in the case of LAXMI COTTON COMPANY AND ANOTHER (SUPRA), the issue relating to the court fee has to be treated as a preliminary issue. This Court, in the case of KARNATAKA THEOSOPHICAL FEDERATION (SUPRA) has held that sub-Sections 2 to 6 of Section 11 perse mandates that all the questions relating to proper valuation of the subject-matter of the suit and payment of proper Court-fee arising on the basis of the pleas and written statement shall be heard and decided before the evidence is recorded on the merits of the claim. 23. In the case of A. MADHAVA HEGDE (SUPRA), the Trial Court’s order refusing to treat the issue relating to Court fee as preliminary issue on the ground that it is not pure question of law, but mixed question of law and facts, this Court set aside the Trial Court’s order. This Court directed that the Court fee issue has to be tried as a preliminary issue. 24. It is also worthwhile to refer to the Division Bench of this Court in the case of VEERAGOUDA & OTHERS versus SHANTAKUMAR @ SHANTAPPAGOWDA (Supra), wherein it is held that the issue regarding valuation of suit and payment of Court fee shall be tried as preliminary issue, if necessary, after recording of evidence; it has to decide the said preliminary issue before the evidence is recorded on the merits of the claim. 25. The plain reading of the provisions contained in Section 11(2) and the interpretation which they have received at the hands of this Court in the cases referred to hereinabove make it crystally clear that the Court has no option but to try the Court fee issue as preliminary issue. This is only with one rider that the issue of insufficiency of the Court fee has to be raised before the first hearing of the suit. In the instance case, it is not in dispute that the petitioner has only raised such a plea in paragraph 11 of the written statement itself. This is only with one rider that the issue of insufficiency of the Court fee has to be raised before the first hearing of the suit. In the instance case, it is not in dispute that the petitioner has only raised such a plea in paragraph 11 of the written statement itself. The filing of I.A.No.2 for framing the additional issues and I.A.No.3 for taking up the additional issue Nos.2 and 3 as preliminary issues do not justify the determent of the consideration of the Court on Court fee issue. 26. The K.C.F. and S.V.Act, is a fiscal statute and its provisions are to be construed strictly. Even assuming that the determination of the Court fee payable is a mixed question of fact and law, then also, the Trial Court has to call for the evidence on the issue pertaining to the payment of Court fee. 27. For all the aforesaid reasons, I cannot but set aside the Trial Court’s order and direct the Trial Court to take up additional issue No.2 as preliminary issue. If the Trial Court forms the considered view that it is a mixed question of fact and law, it has to hold an enquiry thereon. 28. Now the consequential question that arises is what has to be done regarding the evidence which is already collected and placed on the record of the Trial Court. This consequential question would not have arisen, if Sri S.V.Prakash, the Learned Counsel for the petitioner were to come to this Court before the commencement of the trial. The harmonious reading of all the sub-Sections of Section 11 of the K.C.F. and S.V.Act clearly reveals that the Trial Court’s determination of the Court fee is tentative. What it determines is always subject to review, further review and correction as stated in the last portion of Section 11(1) of the K.C.F. and S.V.Act. Section 11(1) deals with the determination of the Court fee on the presentation of the plaint, that is, before the filing of the written statement. Section 11(2) calls for the determination for the Court fee payable after the filing of the written statement. Section 11(3) provides for the redetermination, by the appellate Court of the Court fee payable, if some parties are impleaded subsequently. Section 11(2) calls for the determination for the Court fee payable after the filing of the written statement. Section 11(3) provides for the redetermination, by the appellate Court of the Court fee payable, if some parties are impleaded subsequently. Sub-Section 4(a) of Section 11 provides for the redetermination of the Court fee payable while considering the correctness of the order passed by the Trial Court in the matter. This being the statutory scheme, the evidence, which is placed on the record of the Trial Court cannot be ordered to be discarded. 29. The evidence placed on the record of the Trial Court remains intact. On taking up additional issue No. 2 as the preliminary issue and delivering its decision thereon, the Trial Court shall resume the trial from the stage at which it was interrupted. The same shall of course also depend on the outcome of the Trial Court’s finding on additional issue No.2. 30. If the Trial Court holds that the Court fee paid by the first respondent is adequate, it shall resume the proceedings of recording of evidence on the merits of the case straightaway. If the Trial Court delivers a finding that the Court fee paid is not adequate, it shall call upon the first respondent to pay the deficit Court fee within the prescribed time frame, failing which the Trial Court has to reject the plaint. 31. These petitions are allowed accordingly. No order as to costs. 32. This Court is appreciative of the assistance rendered not only by the Learned Counsel for the parties, but the other Learned Members of the bar, particularly, Sri K.M.Nataraj, the Learned Additional Advocate General, who took the time and trouble to assist me in this matter.