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2014 DIGILAW 447 (KAR)

Nanjamma v. Ashwathamma

2014-04-04

N.KUMAR

body2014
ORDER : N. Kumar, J. 1. This is a plaintiffs' petition challenging the order passed by the Trial Court allowing the application filed under Order 7, Rule 11(a) and 11(d) of Civil Procedure Code, 1908 and dismissing the suit. The plaintiffs have filed a suit for partition and separate possession of their legitimate share in the suit schedule property. In the plaint, they have categorically stated that the plaintiffs and defendants are in joint possession and enjoyment of the suit schedule property. It is further stated that the sale deeds referred to by the defendants were not binding on them; that in the suit for partition, it is not necessary for them to seek cancellation of the sale deed. The defendants have filed written statement contesting the matter stating that as, on the date of the suit, the properties were all alienated and therefore the suit is not maintainable. The defendants filed an application under Order 7, Rule 11(a) and 11(d) of the CPC contending that the plaintiffs have not properly valued the suit. It was contended that the suit ought to have been valued under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act, 1958 (for short, 'the Act') and the Court fee should have been paid on the market value of the property. They also contend that the suit is barred by limitation. 2. After hearing both the parties, taking note of the allegations in the written statement and the affidavit filed in support of the application, where the defendants case is set out, the Trial Court has come to the conclusion that the plaintiffs are not in possession of the property and therefore, valuation of the suit under Section 35(2) of the Act is not proper and therefore, it has directed to pay the Court fee under Section 35(1) of the Act. Aggrieved by the said order, the present writ petition is filed. 3. Order 7, Rule 11 of CPC speaks about rejection of the plaint. Aggrieved by the said order, the present writ petition is filed. 3. Order 7, Rule 11 of CPC speaks about rejection of the plaint. It provides, if plaint does not disclose a cause of action, or the relief claimed is undervalued; the plaintiff on being required by the Court to correct the valuation within a time to be fixed by the Court fails to do so; where relief claimed is properly valued but the plaint is written upon paper insufficiently stamped; where the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court fails to do so and where the suit appears from the statement in the plaint to be barred by any law, the plaint shall be rejected. In the instant case, the plaintiffs have valued the suit under Section 35(2) of the Act. The plaintiffs, in the plaint, have categorically stated that they are in joint possession and occupation of the property. Section 35(2) of the Act prescribes Court fee payable in case where plaintiff is in joint possession. In order to find out whether the plaint as properly valued or not what is to be seen is the averment in the plaint and not the averments in the written statement and therefore in an application filed under Order 7, Rule 11 of CPC the Court gets no jurisdiction to go into the valuation of the suit. Therefore, the impugned order passed is illegal and requires to be set aside. If the defendants take a contention that suit is not properly valued and the Court fee paid is not sufficient, an issue has to be framed in this regard and that has to be tried as preliminary issue. Therefore, the finding recorded by the Trial Court on an application filed under Order 7, Rule 11 of CPC, suit should have been valued under Section 35(1) and not under Section 35(2) of the Act and therefore the order is unsustainable. Hence I pass the following: ORDER The writ petition is allowed. The impugned order is hereby set aside. The application I.A. No. 5 is dismissed. Hence I pass the following: ORDER The writ petition is allowed. The impugned order is hereby set aside. The application I.A. No. 5 is dismissed. However, if and when the question of Court fee and valuation arises in the suit, the same shall be decided by the Trial Court on its merits and in accordance with law, without in any way being influenced by the observations made in this writ petition.