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2015 DIGILAW 972 (KAR)

Rajeshwari v. G. Sundaramurthy

2015-08-21

RATHNAKALA

body2015
ORDER : Rathnakala, J. Petitioners herein are the defendants 12 to 19 of O.S. No. 2968 of 2009, on the file of the 38th Additional City Civil and Sessions Judge, Bangalore. The suit is filed for the following reliefs: (a) Directing the defendants to partition the suit Schedules A, B and C properties into 9 equal shares by metes and bounds and allot one such share to the plaintiff. (b) Deleted. (c) Direct the defendants 1 to 6 to render accounts of the business carried on in E Schedule shop and give 1/7th share in the income earned by the defendants since 1985 till now with future mesne profits and also 1/9th share in all the rents collected by the 1 to 8 in all the schedule properties. (d) Direct the defendants 1 to 8 to relinquish the entire right, in D Schedule property on the B Schedule site." 2. The suit was contested. Since the defendants raised the plea of insufficient Court fee in their written statement, the concerned Court among other issues framed Issue 3 as "Whether the valuation of the suit is proper and Court fee paid is sufficient?"; same was treated as preliminary issue and was answered in the affirmative. The Court was of the opinion that the Court fee and the valuation have to be decided on the averments of the plaint only, hence, Court fee of Rs. 225/- paid as per Section 35(2) of the Karnataka Court Fees and Suits Valuation Act, 1958 (hereinafter referred to as 'the Act'), is proper. 3. But the Court overlooked the fact that the relief sought by the plaintiff as at (d) seeking relinquishment of defendants' right in 'D' Schedule property on the 'B' Schedule site is nothing but a prayer in disguise asserting his right over the said property without seeking a declaration of his right in this regard. Having admitted the execution of registered sale deed in respect of the above property, his prayer at (d) falls under Section 35(4) of the Act, which reads under: "35. Partition suits. – (1)........ (2)........ (3)........ (4) Where, in a suit falling under sub-section (1) or sub-section (2), the plaintiff or the defendant seeks cancellation of decree or other document of the nature specified in Section 38 separate fee shall be payable on the relief of cancellation in the manner specified in that section." 4. Partition suits. – (1)........ (2)........ (3)........ (4) Where, in a suit falling under sub-section (1) or sub-section (2), the plaintiff or the defendant seeks cancellation of decree or other document of the nature specified in Section 38 separate fee shall be payable on the relief of cancellation in the manner specified in that section." 4. In turn, more particularly Section 38(1) of the Act, which is relevant for the present, reads thus: "38. Suits for cancellation of decrees, etc.- (1) In a suit for cancellation of a decree 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, fee shall be computed on the value of the subject-matter of the suit, and such value shall be deemed to be - if the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or other document was executed: if a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property." 5. In view of the above provision, the Court fee required to be paid is on the market value of the property in respect of which relief (d) is sought. 6. The order of the Court below on the preliminary issue would have been set aside, but for the memo filed by the learned Counsel for the respondent 1 today, which reads thus: "The undersigned hereby respectfully submits that, the plaintiff/respondent 1 hereby pray to delete prayer (d) in the plaint, in the interest of justice and equity." 7. In that view of the matter, what remains for adjudication for the Court is, only partition and separate possession of the properties and the consequential reliefs as sought at prayer (c). If the plaintiff restricts his claim to Schedules 'A' and 'C' of the prayer column, the Court fee paid as under Section 35(2) of the Act, is sufficient. With these observations, the writ petitions are disposed of.