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2012 DIGILAW 305 (KAR)

Mridulla J. Rao v. Niranjan V. Joshi

2012-03-29

A.S.PACHHAPURE

body2012
Judgment :- 1. The 3rd respondent herein-Sujatha instituted O.S.No.25/2008 in the court of the Civil Judge (Sr. Dn.), Mangalore (D.K.), claiming a decree for partition and separate possession of her 1/10th share in the suit schedule properties. Respondent Nos.1, 2, 4 to 9 and the petitioner are the defendants in the said suit. 2. Plaintiff-Sujatha had averred in the plaint that the relief in the suit for the purpose of court fee and jurisdiction is valued at `69,00,225-00 and she paid stamp duty of `200-00 under Section 35(2) Article I of Schedule-I of the Karnataka Court Fees and Suits Valuation Act (hereinafter called as “the Act” for short). She also filed a valuation slip. In Clause 3(d) of the Valuation Slip, she stated “Valuation arrived on the relief is valued at `6,90,023-00 relating to her 1/10th share. As the maximum court fee under Section 35(2) of the Act was `200-00 and as the Civil Judge (Sr. Div.) had jurisdiction to entertain suits of the value exceeding `5,00,000-00, the proceedings continued and ultimately, the suit came to be decreed granting the relief of 1/10th share in the plaint schedule properties to the plaintiff, defendant Nos.1, 3 and 8. Accordingly, preliminary decree was drawn. The valuation slip annexed to the plaint was also incorporated as part of the decree. Aggrieved by the Judgment and Decree, defendant Nos.2 and 9 preferred an Appeal in R.A.No.119/2011. During the pendency of the said appeal before the first appellate Court i.e., the District Judge, Mangalore, the petitioner herein, who is the 8th defendant in the suit and respondent No.8 in the appeal filed a memo dated 06.03.2012, a copy of which is produced at Annexure-“A”, alleging that the suit has been valued in the plaint at `69,00,225-00 and fixed court fee of `200-00 was paid under Section 35(2) of the Act and if the value of the property exceeds `10,00,000-00, an appeal shall lie to the High Court and therefore, she submitted that the learned District Judge, before whom the appeal is filed has no jurisdiction to entertain the appeal and therefore, sought for dismissal of the appeal, as not maintainable. The trial Court heard on the memo and rejected the same vide its Order dated 09.03.2002. Aggrieved by the said Order, the present writ petition has been filed. 3. I have heard the learned counsel for the parties. 4. The trial Court heard on the memo and rejected the same vide its Order dated 09.03.2002. Aggrieved by the said Order, the present writ petition has been filed. 3. I have heard the learned counsel for the parties. 4. Admittedly, there is an averment in the plaint that the suit properties are in joint possession of the parties. Therefore, it is Section 35(2) of the Act, which is applicable. So far as the question of fee payable n the said suit, it provides that if the value of plaintiff’s share is `3,000-00 or less, the court fee is `15-00, if the value is above `3,000-00 and not more than `5,000-00, the court fee is `30-00 and if the value is above `5,000-00 and below `10,000-00, the court fee is `100-00 further if it is above `10,000-00, maximum court fee payable is `200-00. So far as payment of the court fee is concerned, there is no dispute between the parties as the value exceeds `10,000-00 and irrespective of the value of the suit properties or the share in the suit properties, as it exceeds `10,000-00, the Court fee paid is not questioned. 5. Ultimately, the question that has been raised in this petition is in relation to the pecuniary jurisdiction of the Courts and as to the value for the purpose of determining the jurisdiction of the courts. Sub-Section (2) of Section 50 of the Act reads: “50. Suits not otherwise provided for: (1) xxx (2) In a suit where fee is payable under this Act at a fixed rate, the value for the purpose of determining the jurisdiction of courts shall be the market value or where it is not possible to estimate it at a money value such amount as the plaintiff shall state in the plaint.” Under the aforesaid provision, if the court fee payable is at a fixed rate, the value for the purpose of determining the jurisdiction of the courts shall be the market value or where it is not possible to estimate it at a money value then, it is the amount as the plaintiff shall state in the plaint. 6. 6. In the context of the aforesaid provision, it is the submission of the learned counsel for the petitioner that in the plaint at para IV it is stated that the plaintiff values the relief for the purpose of court fee and jurisdiction at `69,00,225-00 and the stamp duty of `200-00 as per Section 35(2) Article I Schedule-I of the Act is paid. So, therefore, it is her contention that for the purpose of jurisdiction the suit has been valued at `69,00,225-00 and as the value of the pecuniary jurisdiction exceeds `10,00,000-00, the appeal has to be preferred before the High Court and not before the District Judge. The learned counsel relied upon the decision of this Court reported in 2002 (4) KCCR 2919 (Shivappa and others Vs. M/s. Coffee Land Limited and Another). This Court in the aforesaid decision has taken into consideration the provisions of Section 49 of the Act and relying upon the decision reported in 1968 (2) Mys.L.J. 237 (Shivasangappa Shiddappa Kubsad vs. Ramachandra Narayan Kambli and others) has extracted the relevant portion which is as under: “The very wording of the section and the indications clearly given by the explanations as to the manner of calculation of Court fee make it perfectly clear that Court fee on an appeal is payable in respect of the subject matter of the appeal and that the said amount should be calculated as if the appeal is a suit filed by the appellant for the relief which he makes the subject matter of his appeal.” So, in view of the decision referred to supra, it is the contention of the learned counsel for the petitioner that the suit was valued at `69,00,225-00 for the purpose of pecuniary jurisdiction before the trial Court and it shall be the same value even to decide the jurisdiction of the Court of appeal. 7. Now, to consider the submission made by the learned counsel for the petitioner, it is relevant at this stage refer to the mode of valuation as calculated in the valuation slip by the plaintiff and the total valuation of the suit properties as per Clause 3(b) of the valuation slip is `69,00,225-00, which is same valuation, referred to by the plaintiff in para IV of the plaint. But, it is not in dispute that in the prayer column, the plaintiff has prayed as under: “1. But, it is not in dispute that in the prayer column, the plaintiff has prayed as under: “1. For a preliminary decree for partition declaring that the plaintiff is entitled for 1/10th right, title and interest in the plaint schedule property and direct the division of the plaint schedule property by metes and bounds by taking into consideration the good and the bad soil into 10 equal shares and allot one such share to the plaintiff.” (emphasis supplied) Therefore, so far as the share of the plaintiff in the suit property is concerned, she has valued her 1/10th share at `6,90,023-00 for the purpose of court fee. So, the market value for the purpose of the court fee as admitted by the plaintiff in the valuation slip is `6,90,023-00, whereas the value of the property as the whole is `69,00,225-00. In the circumstances, it is necessary to consider as to whether under Section 50 of the Act it is the value of the plaintiff’s share or the suit properties as the whole could be the valuation for the purpose of pecuniary jurisdiction. 8. So far as the valuation, both for the purpose of court fee and jurisdiction in a suit relating to the partition and separate possession particularly by a person, who is in joint possession of the property though court fee is payable, on the market value of the property, a slab is fixed under Section 35(2) of the Act as stated supra and it is relevant to note that even the valuation for the pecuniary jurisdiction, it is the valuation of the share of the plaintiff, which will have to be taken into consideration as value for the purpose of pecuniary jurisdiction. So, if the plaintiff has valued her relief i.e., 1/10th share in the suit property, then it has to be `6,90,023-00 both for the purpose of Court fee and also jurisdiction and it cannot be for any reason the total market value of the suit properties. It appears that the plaintiff though in the valuation slip gave proper calculation, has committed a mistake in mentioning the valuation of her share for the purpose of jurisdiction and wrongly mentioned the valuation of the relief in the suit for the purpose of court fee at `69,00,225-00. It appears that the plaintiff though in the valuation slip gave proper calculation, has committed a mistake in mentioning the valuation of her share for the purpose of jurisdiction and wrongly mentioned the valuation of the relief in the suit for the purpose of court fee at `69,00,225-00. But, when her suit was for 1/10th share in the suit properties, the valuation both for the purpose of court fee and jurisdiction shall have to be `6,90,000-00. On this aspect of the matter, the learned counsel for respondent Nos.1 and 2 have placed reliance on the decision of this court reported in ILR 1993 Kar. 973 (Thibbaiah vs. Desigowda), wherein this Court in Division Bench, considered the similar question in a suit for partition and separate possession, the applicability of the provisions of Section 35(2) and Section 50 of the Act and held: “As already noted Section 35 provides for a fixed Court fee which in turn depends on the value of the plaintiff’s share; which will be the value to determine the pecuniary jurisdiction of the Court.” The facts reveal that in the said suit, the valuation of the plaintiff’s share in the plaint was `21,920-00 for the purpose of the pecuniary jurisdiction and the Court fee of `20000 was paid under Section 35(2) of the Act and as the valuation for the purpose of pecuniary jurisdiction was less than `1,00,000-00, this Court directed the appellant to approach the learned District Judge in appeal. So, when the plaintiff has valued her share at `6,90,023-00 for the purpose of court fee, the said value is also the value for the purpose of pecuniary jurisdiction under the aforesaid provisions and also the decisions stated supra. Therefore, I am of the opinion, that the learned District Judge was justified in rejecting the memo filed by the petitioner herein. Looking to the facts and the law, though in any angle, I do not find any error or illegality in the order passed by the learned District Judge, Mangalore. In the result, the petition has no merits and it is dismissed accordingly.