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2009 DIGILAW 839 (KAR)

S. Sheshappa v. Hilda Manorama Devadatta

2009-11-10

ASHOK B.HINCHIGERI

body2009
Judgment : ASHOK B. HINCHIGERI, J. 1. The petitioner has called into question the order, dated 14.12.2006 (Annexure-A) passed by the Court of I Additional Civil Judge (Jr.Dn.) Mangalore, D.K, on the preliminary issues in O.S.No.116/2005. 2. The facts of the case in brief are that the respondents filed the suit seeking the relief of declaration that the sale deed, dated 22.10.1997 is illegal, void abinitio non-est and for a consequential decree for giving possession of the schedule flat by the petitioner or any person claiming under him or through him to the respondents. The petitioner raised the plea of insufficiency of Court fee and contended that the said Trial Court has no jurisdiction to try the suit. Based on the rival pleadings and the I.A.No.4 filed by the petitioner, the Trial Court framed tow additional issues, which are as follows: 1. Whether the plaintiffs prove the relief valued by them for the purpose of Court fee and jurisdiction and relief of possession is correct and proper? 2. Whether the defendant proves that this Court has no jurisdiction to entertain the suit? The two afore extracted additional issues were taken as preliminary issues. The Trial Court answered both the issues against the petitioner-defendant. This petition is presented assailing the Trial Court’s order on the said issues. 3. Smt. Pushpalatha, the Learned Counsel appearing for Sri B.L. Acharya for petitioner submits that the suit involves annulment of registered sale deed, dated 22.10.1997. The consideration shown therein is Rs.7,80,000/-. As the respondents have virtually raised the challenge to the sale deed, they are liable to pay the Court fee as per Section 38 of the Karnataka Court Fees and Suits Valuation Act, 1958 (K.C.F. & S.V. Act for short). If the valuation is done accordingly, the Court of Learned Civil Judge (Jr.Dn.) has no pecuniary jurisdiction to try the suit in question as its jurisdiction is confined to only Rs.5,00,000/- under Section 17 of the Karnataka Civil Courts Act, 1964. 4. The Learned Counsel submits that the respondents cannot overcome the requirement of paying Court for computing the value of the subject matter of the suit by avoiding or omitting the use of expression ‘cancellation of the sale deed.’ If the relief as prayed for is granted, it would only mean the cancellation of the sale deed. 5. 4. The Learned Counsel submits that the respondents cannot overcome the requirement of paying Court for computing the value of the subject matter of the suit by avoiding or omitting the use of expression ‘cancellation of the sale deed.’ If the relief as prayed for is granted, it would only mean the cancellation of the sale deed. 5. The Learned Counsel for the petitioner brings to my notice that no Court fee whatsoever is paid on the relief of recovery of possession. She submits that separate Court fee has to be calculated as per the provisions contained in Section 24(a) of the K.C.F. & S.V. Act taking into account the market value of the property. 6. The Learned Counsel has relied on the decision of this Court in the case of Visvaramahotels Ltd. Vs. Anjuman-E-Imamia and Others, 1984 (2) Kar.L.J. 185 wherein it is held that the defendant has an absolute right to contest the valuation. She has relied on paragraph 24 of the said decision, which is extracted hereunder: “24. The valuation in a suit that can even affect the jurisdiction of a Court to entertain and decide that suit, may also affect the Court fee payable. In a given case the Court fee payable may depend on the valuation. But, valuation never depends on the Court fee payable under the Act. Both are separate and distinct and the former can never be mixed up with the latter. Valuation for the purpose of suit and jurisdiction, cannot be confused with the valuation for purpose of Court fee. Both are separate and distinct”. 7. Nextly, the Learned Counsel brings to my notice the Division Bench Judgment of this Court in the case of Shrinwas Konheri Kulkarni Vs. Subbappa Mahatru Nidagalkar and Others, 1976(2) Kar.L.J. 202 wherein it is held that a suit for a decree of permanent injunction based on denial of title is one falling under Section 26(a) of the K.C.F. & S.V.Act. The valuation of such a suit for the purposes of Court fee ought to be have been made in accordance with Section 7(2) of the K.C.F. & S.V.Act. The valuation of such a suit for the purposes of Court fee ought to be have been made in accordance with Section 7(2) of the K.C.F. & S.V.Act. It is further held that, in a suit for permanent injunction falling under Section 26(a), where the subject matter is the land falling within the scope and purview of any of the Clauses (a), (b) or (c) of Section 7(2), the plaintiff is bound to value the suit for purposes of jurisdiction on the basis of its actual market value instead of its deemed value under Section 7(2) of the K.C.F. & S.V.Act. 8. The Learned Counsel seeks to draw the support from the decision of this Court in the case of Siddabasappa and Others Vs. Manjunatha and Others, 1999 (5) Kar. L.J. 529 wherein it is held that the provisions of Section 50(1) make it clear that the valuation of the suit property under Section 7(2) is limited only for the purpose of computation of Court fee and the same has no relevance for the purpose of determining pecuniary jurisdiction of Courts, and that, for the latter purpose, it is the market value of the lands which is necessary. Based on this judgment and based on what is averred in paragraph 2 of the written statement, in which a categorical assertion is made that the market value of the property exceeds eight to ten lakh rupees, the Court of Civil Judge (Jr.Dn.) has no jurisdiction to try the suit, because as contended earlier, under Section 17 of the Karnataka Civil Courts Act, the pecuniary jurisdiction of the Civil Judge (Jr.Dn.) is confined to Rs.5,00,000/-. 9. She has also relied on the Judgment of this Court in the case of Smt. Vattikoti Kantamma Vs. T.Suryanarayana and Others, 2004 (4) Kar. L.J. 257, wherein it is reiterated that while for computing of Court fee payable, market value of suit land is deemed to be twenty-five times of the land revenue payable in respect thereof, market value of the suit land for purpose of determining pecuniary jurisdiction of Court to entertain suit, is actual market value of suit land. The relevant paragraph of the Judgment is extracted hereunder: “4. The relevant paragraph of the Judgment is extracted hereunder: “4. On the agricultural lands under Section 7 of the Karnataka Court Fees and Suits Valuation Act, the Court fee has to be paid on the basis of the twenty-five times the value of the land revenue. However, for the purpose of pecuniary jurisdiction, the suit is to be valued on the basis of actual market value under Section 50 of the Court Fees and Suit Valuation Act. In the case of urban property perhaps the distinction between the valuation for the purpose of Court fee and for the purpose of pecuniary jurisdiction may not arise, but in the case of agricultural lands, the law maintains a clear distinction. Therefore, the view taken by the Trial Court that the Court fee is to be paid on the basis of value stated for pecuniary jurisdiction is incorrect and illegal. Accordingly, the order of the Trial Court is set-aside. The mater is remanded for disposal in accordance with law.” 10. For buttressing her submission that what matters is the substance of the relief sought and not the form or the words, the Learned Counsel for the petitioner has relied upon the decision of this Court in the case of M/s. Shivaram Bapuchand Shaha & Co., Vs. M/s. Hira Chand Sakharam Mehata & Co., ILR 1988 Kar 1962. It is held therein that Section 24(d) only contains the general provisions; it does not deal with any specific relief. If the suit falls under a particular provision of the K.C.F. & S.V.Act, it cannot be brought under general provision. It is further held therein that a suit for declaration of decree as null and void, in effect is for cancellation of decree. Hence, it falls under Section 38. The relevant paragraphs of the said Judgment are extracted hereinbelow: “5…..The plaintiffs under the garb of seeking a declaration are virtually seeking the relief of cancellation of the decree obtained against them. The relief of declaration sought for by the plaintiffs that the decree passed in O.S. 125/81 dated 17.2.1982 by the Court of the Civil Judge, Chikodi is null and void, has to be construed as the one for cancellation of the decree, inasmuch as, the result of granting such a relief is to cancel the decree itself. The relief of declaration sought for by the plaintiffs that the decree passed in O.S. 125/81 dated 17.2.1982 by the Court of the Civil Judge, Chikodi is null and void, has to be construed as the one for cancellation of the decree, inasmuch as, the result of granting such a relief is to cancel the decree itself. It is the substance of the relief that is relevant and material and not the form for the purpose of deciding the question as to whether the suit is properly valued and the Court fee paid is sufficient. The plaintiffs are parties to the decree, therefore they have to seek a relief of cancellation of the decree, therefore they have to seek a relief of cancellation of the decree. When the effect of the declaratory relief sought for by the plaintiffs-petitioners, if granted, is to set-aside or cancel the money decree, the relief, necessarily falls under Section 38 of the Act. The Act is a fiscal statute. It has to be construed strictly. If the substance of the relief sought for in a suit falls under a particular provision of the Act, it cannot be brought under the general provision. Section 24(3) of the Act is in the nature of a general provision. It does not deal with any specific relief sought for in the suit. Whereas, Section 38 of the Act specifically deals with suits for cancellation of decrees for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right title or interest in money, movable or immovable property. That being so when the relief sought for by the plaintiffs-petitioners, as already pointed out, if effect and in substance is to seek the relief of cancellation of a decree necessarily, it falls under Section 38 of the Act.” 6. The plaintiffs are required to value the relief correctly. They cannot be permitted to under value the relief. In the valuation of relief, the plaintiff has to be reasonable………………..” 11. The Learned Counsel also brings to my notice the decision of this Court in the case of The Karnataka Housing Board, Bangalore Vs Yamanursab and Others, 2000 (4) Kar. The plaintiffs are required to value the relief correctly. They cannot be permitted to under value the relief. In the valuation of relief, the plaintiff has to be reasonable………………..” 11. The Learned Counsel also brings to my notice the decision of this Court in the case of The Karnataka Housing Board, Bangalore Vs Yamanursab and Others, 2000 (4) Kar. L.J. 516, wherein it is held that in a suit for declaration of title and for possession of property to which the declaration relates, fee is to be computed on the basis of the market value of the suit property. In the said decision, it is further held that the property is to be valued atleast at the value in the sale deed. 12. Sri Hanumantharayappa, the Learned HCGP submits that the schedule property is situated in the urban area and that therefore Section 7 of the K.C.F, & S.V. Act, has no application for the case on hand. According to him, what is applicable is only Section 38 of the said Act. 13. Sri Vijay Krishna Bhat, the Learned Counsel appearing for the respondents submits that, as the respondents are not parties to the sale deed executed in favour of the petitioner and as it is the case of the respondents that it is not binding on them, they are not obliged to challenge the sale deed said to have been executed in favour of the petitioner. It is open to them to contend and pray that the sale deed is not binding on them. In support of his submissions he has relied on the Division bench Judgment of this Court in the case of Kenchawwa Vs. Ama Gonda, ILR 1988 Kar 1185, wherein it is held that the sale transaction is void if the same is secured by fraud and mis-representation. As such a deed does not exist in the eye of law, the question of seeking its cancellation does not arise. The relevant paragraphs of the Judgment are extracted hereinbelow: “10. However, it was contended by the Learned Counsel appearing for the defendant-1 that the plaintiff having not sought for cancellation of the document, the suit is not maintainable and if she has sought for cancellation of the document in the proper form she should have paid the Court fee on the value of the sale consideration. However, it was contended by the Learned Counsel appearing for the defendant-1 that the plaintiff having not sought for cancellation of the document, the suit is not maintainable and if she has sought for cancellation of the document in the proper form she should have paid the Court fee on the value of the sale consideration. 14…………….In the light of this statement of law, we do not think that the Learned Counsel for defendant-1 is justified in contending that the suit should be dismissed on the ground that proper Court-fee was not paid and the plaintiff has not sought for cancellation of the documents. Since her relief is based on two grounds, namely, fraud and mis-representation as to the nature of the document as also the contents of the document, the sale transaction in question was void and it does not exist in the eye of law. Therefore, cancellation of a void transaction does not arise. The plea of limitation was not seriously pressed. The suit is within time, if time is reckoned from the date of knowledge of fraud.” 14. Sri Bhat further submits that the payment of Court fee is basically the matter between the litigant and the State. If the petitioner-defendant’s contention that the Court fee paid is inadequate is negatived, he has no right of revision for challenging the said order. In support of this submission he has relied on the Apex Court’s Judgment the case of Sri Rathnavarmaraja Vs. Smt. Vimla, AIR 1961 SC 1299 . Stretching the argument, the Learned Counsel submits that if the revision petition is not entertainable against the order made by the Trial Court the sufficiency or otherwise of the Court fee paid, the Writ Petition under Article 227 is also not maintainable. He also brings to my notice this Court’s decision in the case of Manicklal Verma And Another Vs. Smt. Jamunadevi and Others, 2002 (4) Kar.L.J. 400 (2002(2) KCCR 269). The relevant paragraph of the said Judgment is extracted hereinbelow: “7. In the present case, as already noticed, the Trial Court in fact has decided the issue on valuation and quantum of Court fee payable by holding an enquiry as it thought fit. Therefore, the Court cannot be said to have committed any error of jurisdiction in not considering the question of valuation and sufficiency of Court fee paid as mandated under Section 11(2) of the Act. Therefore, the Court cannot be said to have committed any error of jurisdiction in not considering the question of valuation and sufficiency of Court fee paid as mandated under Section 11(2) of the Act. The grievance of the defendant before this Court is that the valuation has not been done in proper manner. The question now is whether such a plea can be permitted to be raised in the revisional jurisdiction under Section 115 of the CPC or not”. 15. The Learned Counsel further submits that the petitioner would not suffer any prejudice, if this petition is thrown out, because he can raise the issue of the inadequacy of Court fee as one of the grounds in the Appeal Memorandum. Section 11(4) of the said Act provides for the same. He sought to draw support from this Court’s decision in the case of S. Mohammed Omer Vs. Saranbi and Others, (1974) 1 Kar.L.J.27 wherein it is held that the plaintiff has got an adequate remedy under Section 11(4) of the said Act to challenge the order in an appeal against the final disposal of the suit and hence this Court will not interfere in the revision with the order. 16. The Learned Counsel has also relied on the decision of the High Court of Judicature, Madras, in the case of K. Sundaramoorthy Mudaliar Vs. Manikhammal and Another, 1964 M.L.J. 152 wherein it is held that where the purchaser of a property files a suit only for a declaration that an equitable mortgage cannot by his vendor was not binding on him, he is entitled to pay the Court fee under Section 25(d) and is not liable to pay the Court fee under Section 40 of the Madras Court- fees Act for cancellation of the equitable mortgage. 17. I am afraid this petition cannot be thrown out as the remedy of raising the ground in the Appeal is available to the petitioner. Because a distinction has to be made between the lack of jurisdiction and lack of inherent jurisdiction. The competence of a Court to try the case goes to the very root of the matter. The re-computation of the Court fee liable to be paid may have the effect of taking the case out of the Court of the Civil Judge (Jr.Dn.) Mangalore and representing it before the Court of the Civil Judge (Sr.Dn.) Mangalore. 18. The competence of a Court to try the case goes to the very root of the matter. The re-computation of the Court fee liable to be paid may have the effect of taking the case out of the Court of the Civil Judge (Jr.Dn.) Mangalore and representing it before the Court of the Civil Judge (Sr.Dn.) Mangalore. 18. In the cases of Manicklal Verma and Mohammed Omer (Supra) the jurisdictional issues were not involved. It is worthwhile to refer the last portion of paragraph 2 in Mohammed Omer’s case. “This is not the one of those cases where on payment of additional Court fee, the Trial Court would lose its jurisdiction to entertain the suit”. The argument that the sale deed is obtained by fraud and mis-representation and that therefore the respondents-plaintiffs are not obliged to seek any declaration that the sale deed is null and void has got to be considered in the light of the various decisions relied upon by the petitioner’s side to which the elaborate references are made hereinabove. Further, the Trial Court shall also consider afresh the liability of the respondents to pay the Court fee taking into account the substance of the prayer and not merely the form of the prayer. 19. For yet another reason too, the Trial Court’s-order is required to be set-aside. When the prayer is for the recovery of possession too, no Court fee whatsoever is paid on the said prayer or relief. Section 24(a) of the K.C.F. & S.V.Act, 1958 reads as follows: “24. Suits for declaration: In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under Section 25. (a) Where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market value of the property or on (rupees one thousand) whichever is higher.” 20. This Court also finds considerable substance in the submissions made by Sri Hanumantharayappa, the Learned HCGP that Section 38 of the said Ac t is attracted to the facts of this case. Section 24(d) is for residuary cases, that is, where no specific provision made for valuing the subject matter of the suit. 21. The categorical assertion in paragraph 2 of the petitioner’s written statement has not received any meaningful consideration at the hands of the Trial Court. Section 24(d) is for residuary cases, that is, where no specific provision made for valuing the subject matter of the suit. 21. The categorical assertion in paragraph 2 of the petitioner’s written statement has not received any meaningful consideration at the hands of the Trial Court. That apart, in the sale deed, dated 22.10.1997 executed by Samuel Shekar Karkera in favour of the petitioner, the value set forth in the said instrument is Rs.7,80,000/-. Prima-facie, market value cannot be lesser than what is shown in the instrument itself. 22. As held by this Court in the case of M/s. shivaram Bapuchand Shaha & Co., (supra), if the suit falls under a particular provision, it cannot be brought under the general provision. Further, this Court has held in the case of The Karnataka Housing Board, Bangalore Ors. (Supra) that fee is to be computed on the basis of the market value of the suit property, if the suit is for declaration of title and for possession of property. The Trial Court has fallen into an error by accepting the computation made by the respondents that the suit is valued at Rs.1,000/- both for the purpose of Court fees and jurisdiction. The payment of Court fee has no relevance for the purpose of determining the pecuniary jurisdiction of the Courts, as held by this Court in the case of Siddabasappa and Others (Supra). Under Section 50 of the K.C.F. & S.V.Act, the value of the land for the purpose of determining the jurisdiction of the Court shall be the market value of such land. 23. For all the aforesaid reasons, I allow this petition by setting aside the impugned order and direct the Trial Court to hold such enquiry, as it considers proper as per the provisions contained in Section 18 of the K.C.F. & S.V.Act, and to determine the valuation for the purpose of Court fee and jurisdiction separately after affording opportunities to both the parties. The Trial Court shall pass fresh orders on the additional issue Nos. 4 and 5 within an outer limit of one month from the date of production of the certified copy of today’s order. 24. No order as to costs.