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2020 DIGILAW 1918 (KAR)

Vasanthamma v. Seenappa

2020-09-30

N.S.SANJAY GOWDA

body2020
JUDGMENT N S Sanjay Gowda, J. - It is stated that respondent No.1 is no more but his legal representatives are already on record as respondent Nos.2 to 7. Hence, respondent Nos.2 to 7 are considered as the legal representatives of the deceased respondent No.1. 2. The plaintiff filed the suit seeking for partition. In the suit, she stated as follows: "9. It is submitted that, the Plaintiff and the Defendants No.1 to 7 constitute Hindu undivided Joint Family and there is no division or partition by metes and bounds among the parties and the same continued to remain undivided and is in joint possession of all the parties. 11. It is further submitted that, the Defendants No.1 and 2 have no exclusive manner of right to deal with the Schedule Property as the Suit Schedule Property are the joint family and ancestral property and the same is in joint possession and enjoyment of the plaintiff and the Defendants No.1 to 7. Upon which, the Plaintiff has got equal share on both the Suit Schedule Property, the 1st Defendant has no exclusive manner of right, title and interest to create any Encumbrance as a co-parcener and there is no partition in the family." 3. Thus, the plaintiff set up a plea of joint possession and accordingly valued the suit under section 35(2) of the Karnataka Court Fee and Suits Valuation Act (hereinafter referred to as 'Act' for short). 4. The defendants however contended in the written statement that the court fee paid was insufficient and the plaintiff was not in joint possession. 5. In view of the said plea an issue as to "Whether the court fee paid was sufficient" was framed by the Trial Court. 6. By the impugned order, the Trial Court while considering the said issue regarding sufficiency of the court fee paid recorded the following finding: "The question of Court treating the suit of the plaintiff as one falling under section 35(1) of the Act and directing the plaintiff to pay the court fee under that section does not arise. If the plaintiff chooses not to amend the plaint to bring the suit under section 35(1) of the Act and pay court fee thereon, she takes the chance of suit getting dismissed or relief being denied is hereby ordered accordingly". 7. If the plaintiff chooses not to amend the plaint to bring the suit under section 35(1) of the Act and pay court fee thereon, she takes the chance of suit getting dismissed or relief being denied is hereby ordered accordingly". 7. It is settled law that in as far as payment of court fee is concerned, the only criteria for determining whether proper court fee is paid or not, the averments made in the plaint alone would be germane. 8. Admittedly, the plaint averments as extracted above, indicate a categorical that the plaintiff was in joint possession had been set up. The Trial Court, in the light of this plea, could not have come to the conclusion that the court fee paid under Section 35(2) of the Act was incorrect. 9. The Trial Court, in the impugned order, has rested its finding on the following reasoning: "5. It is important to note here that nowhere she has pleaded that these properties are in joint possession with her and defendants 1 to 7." 10. It is thus manifestly clear that the Trial Court has not noticed that there were clear averments made in the plaint to the effect that the plaintiff was in the joint possession of the suit properties. Thus, the Trial Court was completely wrong in recording a finding that the plaintiff had nowhere pleaded that she was in joint possession along with the defendant Nos.1 to 7. 11. It is also pertinent to state here that while determining whether the court fee paid was sufficient or not, the Trial Court could not have ventured to decide whether the plaintiff was in joint possession of the suit properties or not. The question as to whether the plaintiff was in the joint possession or not would be a question which would have to be decided at the time of hearing of the suit and the same cannot be decided while considering whether appropriate court fee has been paid. 12. The impugned order is therefore unsustainable and the same is set aside. It is held that in consonance with the plain averments, the plaintiff had paid the correct court fee under Section 35 (2) of the Act and the observations made by the Trial Court that it was a case relating to 35(1) of the Act is therefore set aside. The impugned order is therefore unsustainable and the same is set aside. It is held that in consonance with the plain averments, the plaintiff had paid the correct court fee under Section 35 (2) of the Act and the observations made by the Trial Court that it was a case relating to 35(1) of the Act is therefore set aside. Accordingly, the writ petition is allowed and the impugned order is set aside.