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2018 DIGILAW 868 (KAR)

Doddirappa v. Mahadevamma

2018-08-08

VINEET KOTHARI

body2018
ORDER : VINEET KOTHARI, J. 1. The defendant 1-Doddirappa S/o. late Doddegowda and others have filed this writ petition under Article 227 of the Constitution of India aggrieved by the order dated 4-1-2017 passed by the learned Trial Court rejecting I.A. filed by the defendant 7 under Section 11(1), (2) of the Karnataka Court Fees and Suits Valuation Act, 1958 (for short 'Act') holding that the question of Court fees and limitation being a mixed question of law and facts in the present suit for partition and separate possession and therefore the said issue cannot be considered as a preliminary issue. 2. The reasons assigned by the learned Trial Court are quoted below for ready reference: "9. The issue with regard to the limitation is an issue of mixed question of law and facts. Therefore, it cannot be decided as a preliminary issue. 10. In the decision relied by the learned Counsel for the 7th defendant in the case between Veeragouda and Others v. Shanta Kumar alias Shanlappagowda, ILR 2009 Kar. 887 (DB), the Hon'ble High Court of Karnataka held that "When once a plea is taken that the suit has not been properly valued or that the fee paid is not sufficient, issue arising on such pleas shall be heard and decided before evidence is recorded on merits of the claim". 11. But, in the present case on hand, since, the pleadings of the plaintiffs are that they and defendants 1 to 7 are in joint possession and enjoyment of the suit schedule properties which is denied by the 7th defendant in the written statement. Therefore, this Court while framing Issue No. 1 included the said fact in issue casting the burden upon the plaintiff to prove it. Though, in the aforesaid decision relied by the learned Counsel for the 7th defendant, the Division Bench of Hon'ble High Court of Karnataka has laid down the aforesaid principles in a suit for partition and separate possession on the immovable property where the sufficiency of payment of Court fee was an issue, the facts and circumstances of the said case or not similar because as stated above, in the present case on hand there is a specific pleading by the plaintiffs in the plaint that they and defendants 1 to 7 are in joint possession and enjoyment of the suit schedule properties and an issue has been framed on that pleadings. Moreover, an issue on sufficiency of payment of Court fee is also framed as issue No. 8. 12. Issue Nos. 1 and 8 are connected to each other because, the plaintiffs have pleaded that they and defendants 1 to 7 are in joint possession and enjoyment of the suit schedule properties and therefore, they have valued the suit under Section 35(2) of the Karnataka Court Fees and Suits Valuation Act. If they proved the said fact in issue, the payment of Court fees under Section 35(2) of the Karnataka Court Fees and Suits Valuation Act is proper. Otherwise, the plaintiffs shall pay the Court fee under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act. In the decision in Smt. A. Hemaganga and Another v. A. Umadevi and Others, 2016 (3) Kar. L.J. 253, the Hon'ble High Court of Karnataka held that "the issue of payment of Court fee required to be adjudicated after full-fledged trial. The pleading as to joint possession is sufficient in the plaint at earliest stage". In view of the said decision, the 7th defendant has not made out sufficient grounds to treat Issue Nos. 7 and 8 as preliminary issue, to decide it prior to commencing of the evidence of other issues and to direct the plaintiff to pay the Court fee as per Section 35(1) of the Karnataka Court Fees and Suits Valuation Act. Hence I answer the above point in the negative. In the result, I proceed to pass the following: ORDER I.A. filed by the 7th defendant under Section 11(1), (2) of the Karnataka Court Fees and Suits Valuation Act, 1958 is hereby dismissed." 3. The learned Counsel for the petitioners/plaintiffs Mr. G. Ravishankar, relying upon the decision of this Court in the case of Veeragouda and Others v. Shantakumar alias Shantappagowda, ILR 2009 Kar. 887 (DB) has submitted that the issue of Court fees should be decided as a preliminary issue before the evidence is recorded affecting such defendant, on the merits of the claim. 4. On the other hand, the learned Counsel for the respondents/defendants supported the impugned order. 5. 887 (DB) has submitted that the issue of Court fees should be decided as a preliminary issue before the evidence is recorded affecting such defendant, on the merits of the claim. 4. On the other hand, the learned Counsel for the respondents/defendants supported the impugned order. 5. Having heard the learned Counsel for the parties, this Court is satisfied that there is no error much less perversity in the impugned order passed by the learned Trial Court as the Trial Court has observed in its order that the question of Court fees and limitation being an issue of mixed question of law and facts in the present suit for partition and separate possession and therefore the said issue cannot be considered as a preliminary issue. 6. In these circumstances, the impugned order does not require any interference by this Court. The judgment cited by the learned Counsel for the petitioners/plaintiffs is not applicable to the facts of this case. 7. The writ petition is found to be devoid of merit and is liable to be dismissed and the same is accordingly dismissed. No costs.