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2013 DIGILAW 760 (KAR)

Subbaiah v. Jayaramappa

2013-07-03

ANAND BYRAREDDY

body2013
Judgment : 1. The appeal coming on for admission is considered for final disposal. 2. The appellants were the plaintiffs before the Trial Court and the pleadings were completed. The Court had framed issues. Issue No.4 was in relation to sufficiency of Court Fee paid. This issue was framed on an objection raised by the defendants as to the nature of the suit property. The suit property had been valued on the basis that the suit property was the agricultural land. However, it was the defendants' case that the plaintiffs were not the owners and that they were the owners of the property and that the same was converted for non-agricultural purposes and had produced the conversion order. The Court below therefore proceeded to decide on issue No.4, as a preliminary issue. The Court below decided issue No.4 by its order dated 7.11.2012. The order, while reciting the respective cases of the parties, has taken note of the fact that the suit property was converted land. Whereas the plaintiffs had valued the suit under Section 7 (2)(a) and Section 24(b) of the Karnataka Court Fees and Suits Valuation Act, 1958 and valued the suit at Rs.1,000/- and paid the Court Fee of Rs.50/-on the reliefs sought. The plaintiffs had indicated the market value of the property at Rs.11,00,000/-. The extent of the property was 1 acre and 24.08 guntas and was converted by an order dated 23.10.2010 by the Deputy Commissioner, Bangalore East. The Court below has opined that the property was worth more than Rs.11,00,000/-and has held that the plaintiffs were to pay the Court Fee under Section 24(b) of the Karnataka Court Fees and Suits Valuation Act, 1958, namely, on half of the market value of the suit property that is Rs.5,50,000/- and the valuation made by the plaintiffs was incorrect and the Court Fee paid was not sufficient and directed the plaintiffs to pay an additional Court Fee of Rs.36,375/- within one month from the date of order. The plaintiffs did not comply with the same, but sought further time by filing an application. The application was considered and the suit itself was dismissed for non-compliance with the direction issued as regards payment of deficit Court Fee. 3. The plaintiffs did not comply with the same, but sought further time by filing an application. The application was considered and the suit itself was dismissed for non-compliance with the direction issued as regards payment of deficit Court Fee. 3. The preliminary contention urged before this Court is that the point is well settled, namely, that if there is a dispute as to the proper Court Fee to be paid as in the instant case, it was necessary not only that the same should be treated as a preliminary issue but if it was a mixed question of fact and law, it should have been tried. It is further pointed out that it is a disputed question as to whether the defendants were in a position to lay claim to the land itself. The conversion of the land from agricultural to residential purposes was not at the instance of the plaintiffs, but was carried out behind their back at the instance of the defendants. That order of conversion has been challenged in appeal and the same has been stayed, by the Appellate Authority. This aspect of the matter was crucial in deciding whether the Court Fee was indeed payable by the plaintiffs and there was no such adjudication on that aspect as well as the claim of title. But merely proceeding on the basis that the conversion order indicated that the suit property was no longer agricultural land and having proceeded to direct the plaintiffs to pay deficit Court Fee was, in itself, an order which ran counter to the settled principles of law as held in a catena of decisions. 4. The learned counsel for the respondents, on the other hand, would draw attention to the language of Section 11(2) of the Karnataka Court Fees and Suits Valuation Act, 1958 to point out that it only requires the Court to hear and decide the issue as regards Court Fee and that has been complied with and therefore, to contend that the same was not tried as an issue, was not relevant. 5. It is always in the discretion of the Court as to whether a trial is required even in so far as the preliminary issue as regards Court Fee is concerned. 5. It is always in the discretion of the Court as to whether a trial is required even in so far as the preliminary issue as regards Court Fee is concerned. The Court, having exercised its discretion, cannot be found fault with as there is no dispute that the land was infact converted and no longer had the character of agricultural land and if that fact could not be denied, notwithstanding that the same is under challenge in appeal. There is no illegality committed by the Court. 6. However, in view of the case law on the point, especially a recent decision of a Division Bench of this Court in 'VEERAGOUDA & OTHERS v. SHANTAKUMAR @ SHANTAPPAGOWDA', ILR 2009 KAR 887, the entire case law has been reviewed and while considering the phrase "shall be heard" contained, in Sub-Section (2) of Section 11, the Division Bench has opined that the issue regarding valuation of the suit and payment of Court Fee shall be tried as a preliminary issue, if necessary, after recording of evidence and decide the said preliminary issue, before evidence is recorded affecting such defendant on the merits of the claim. 7. Therefore, the law is well settled that, any issue regarding Court Fee shall be treated as a preliminary issue and it shall be heard. Whether evidence is to be recorded or not, is a question which the Court will decide at its discretion. In the instant case on hand, it can straightaway be said that since there was a dispute about the liability to pay the Court Fee, when the land had not been converted at the instance of the plaintiffs but behind their back at the instance of the defendants and there was an order of stay granted by the Appellate Tribunal in so far as the conversion order is concerned, how far it affected the nature of land and how far it could be utilised for the purposes other than agriculture, was a pertinent issue that ought to have been adjudicated in deciding as to the nature of the land vis-à-vis the valuation for purposes of Court Fee. Therefore, evidence was certainly required to be recorded and the question had to be decided on the basis of the evidence thereon. Therefore, evidence was certainly required to be recorded and the question had to be decided on the basis of the evidence thereon. The mere production of the conversion order, by the defendants was not sufficient for the Court to hold that the plaintiffs were required to pay Court Fee on the market value of the property. It is also to be noticed that even the market value has not been determined by the Court below, while it is opined that the market value was worth much more than Rs.11,00,000/-, but not having chosen to address the real market value, on the face of it, was clearly a biased view, without adjudication of the issue. 8. Hence, the appeal is summarily allowed. The judgment of the Court below is set aside and the matter is remanded for a fresh consideration. It would be necessary for the Court below to record evidence on the issue of sufficiency Court Fee and thereafter, to pass appropriate orders in accordance with law. The parties shall appear before the Trial Court without further notice on 1.8.2013. The appellants are entitled to a refund of the Court Fee paid on this appeal in terms of Section 64 of the Karnataka Court Fees and Suits Valuation Act, 1958.