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2023 DIGILAW 264 (KAR)

Gajanan v. Vaijayanti

2023-02-13

S.R.KRISHNA KUMAR

body2023
JUDGMENT/ORDER 1. This petition is directed against the impugned order dtd. 3/3/2021 passed in O.S.No.17/2017 by the Senior Civil Judge, Kumta, whereby the preliminary issue framed pursuant to I.A.No.V in relation to payment of Court fee was answered in favour of the respondent/plaintiff. 2. Heard learned counsel for the petitioner and learned counsel for respondent and perused the material on record. 3. A perusal of the material on record will indicate that the respondent/plaintiff had instituted the aforesaid suit for partition and declaration in relation to the suit schedule immovable property. The petitioner is arrayed as defendant No.2 in the said suit and at his instance a issue relating the Court fee was framed and treated by the Trial Court as a preliminary issue and answered in favour of respondent/plaintiff vide impugned order dtd. 3/3/2021 by holding as under : "ORDERS ON PRELIMINARY ISSUE The following preliminary issue is framed in view of I.A.No.5filed by the defendant no.2 under Order XIV Rule 1 and 5 r/w Sec. 151 of CPC which reads as follows :- 1. Whether the Court fee paid by the plaintiff is proper? 2. Heard both sides on the aforesaid preliminary issue framed in respect of payment of Court fee. The defendant no.2 has raised the said aspect of Court fee and not chosen to adduce any evidence on the above said preliminary issue. The plaintiff has also not adduced any evidence in view of non adducing evidence on behalf of defendant no.2 in this aspect. 3. The materials on record reveals that, the plaintiff has filed the instant suit seeking relief of declaration that the Sale Deed dtd. 9/1/2015 executed by defendant no.1 in favour of defendant no.2 is not binding upon her and also sought relief of partition and separate possession of her 2/3rd share in the suit schedule property subject to metes and bounds. The defendant no.2 in this case has contended that, the Court fee paid by the plaintiff is not proper. 9/1/2015 executed by defendant no.1 in favour of defendant no.2 is not binding upon her and also sought relief of partition and separate possession of her 2/3rd share in the suit schedule property subject to metes and bounds. The defendant no.2 in this case has contended that, the Court fee paid by the plaintiff is not proper. The materials on record also reveals that, the defendant no.2 has previously filed I.A.No.III under Order VII Rule 11(c) and (d) of CPC r/w Sec. 11 of Karnataka Court Fees and Suits Valuation Act, 1958 seeking rejection7of the plaint and this Court has dismissed the said application and against the said Order of dismissal, the defendant no.2 has filed Civil Revision Petition No.10062/2018 before the Hon'ble High Court of Karnataka and the same was disposed off wherein liberty is given to the defendant no.2 to file necessary application to consider the issue on Court fees as preliminary issue and directed this Court to consider such issue without being influenced by the order passed by the Hon'ble High Court of Karnataka in the said Revision Petition. Accordingly, the defendant no.2 has filed the said application and the said application filed as per I.A.No.V was partly allowed by this Court and the above said preliminary issue is framed. 4. Heard both sides and perused the materials on record. 5. The following points arose for consideration of the Court :- 1. Whether the defendant no.2 proves that the Court fee paid by the plaintiff is insufficient and the preliminary issue has to be answered in the negative? 2. If so, what order? 6. My answer to the above points are as under: - Point No.1 : In the Negative, Point No.2 : As per the final order, for the following:- REASONS 7. POINT NO.1: 3. The materials on record reveals that, the plaintiff has filed the instant suit seeking relief of declaration that the Sale Deed dtd. 9/1/2015 executed by defendant no.1 in favour of defendant no.2 is not binding upon her and also sought relief of partition and separate possession of her 2/3rd share in the suit schedule property subject to metes and bounds. The defendant no.2in this case has contended that, the Court fee paid by the plaintiff is not proper. 9/1/2015 executed by defendant no.1 in favour of defendant no.2 is not binding upon her and also sought relief of partition and separate possession of her 2/3rd share in the suit schedule property subject to metes and bounds. The defendant no.2in this case has contended that, the Court fee paid by the plaintiff is not proper. The materials on record also reveals that, the defendant no.2has previously filed I.A.No.III under Order VII Rule 11(c) and (d) of CPC r/w Sec. 11 of Karnataka Court Fees and Suits Valuation Act, 1958 seeking rejection of the plaint and this Court has dismissed the said application and against the said Order of dismissal, the defendantno.2 has filed Civil Revision Petition No.10062/2018 before the Hon'ble High Court of Karnataka and the same was disposed off wherein liberty is given to the defendant no.2 to file necessary application to consider the issue on Court fees as preliminary issue and directed this Court to consider such issue without being influenced by the order passed by the Hon'ble High Court of Karnataka in the said Revision Petition. Accordingly, the defendant no.2 has filed the said application and the said application filed as per I.A.No.V was partly allowed by this Court and the above said preliminary issue is framed. 8. During the course of argument Sri. V.S.P., the learned Counsel for the defendant no.2 has reiterated the written statement averments and contended that, the Court fee paid by the plaintiff is improper and the said preliminary issue has to be answered in the negative and proper orders may be passed. On the other hand, the learned Counsel for plaintiff has submitted that, the Court fee paid by the plaintiff is sufficient and the preliminary issue has to be answered in the affirmative by holding the view that the plaintiff has properly valued the suit and paid the proper Court fee. It is settled law that, the matter concerning to adjudication of proper Court fee is a matter between the plaintiff and the Court or State and the defendant is nothing to do with it. Because, the said aspect will not affect the claim of the defendant in any way. Further, it is also a settled principle of law that, while adjudication of valuation of Court fee the plaint averments are material and relevant and the contents of the written statement is nothing to do with it. 9. Because, the said aspect will not affect the claim of the defendant in any way. Further, it is also a settled principle of law that, while adjudication of valuation of Court fee the plaint averments are material and relevant and the contents of the written statement is nothing to do with it. 9. While deciding the preliminary issue, the Court has to adjudicate the mater on two points 1) valuation of property for the purpose of jurisdiction and 2 ) whether the suit is barred under any law or aspect of maintainability of the suit. The matter pertaining to Court fee is a mixed question of law and facts and it always based upon averments in the plaint and it requires enquiry. The plaintiff has sought the relief of declaration that, the documents executed by the G.P.A. Holder in favour of defendant no.2 by executing Sale Deed dtd. 9/1/2015 and the compromise decree dtd. 27/6/2014 are fraudulent documents and got created by the defendant no.2 which is null and void and it is not binding on her share. The plaintiff has also sought relief of partition and separate possession and she alleged that the said forged documents of Sale Deed and Compromise Decree are not binding upon her. It is pertinent to note that, the plaintiff is not a party to the said documents in question. Admittedly, the plaintiff is not a party in the said compromise decree passed in O.S.No.13/2014. It is evident that the plaintiff is also not a signatory to the Sale Deed in question. When the plaintiff makes out case of fraud and misrepresentation then the document in question itself is void and even it is assumed that, the defendant has acquired possession pursuant to that document, such possession does not confer any right to the defendant unless his possession is protected by any other law in force. When the document executed itself is void and possession acquired there under does not confer any rights, then seeking cancellation of said Deed does not arise at all. Hence, seeking cancellation of void transaction does not arise at all. 10. Further, when the plaintiff is not a party to the Sale Deed and the plaint allegations makes it clear that, the contention of the plaintiff that the said Sale Deed is a sham transaction, the plaintiff need not pray for cancellation of the document. Hence, seeking cancellation of void transaction does not arise at all. 10. Further, when the plaintiff is not a party to the Sale Deed and the plaint allegations makes it clear that, the contention of the plaintiff that the said Sale Deed is a sham transaction, the plaintiff need not pray for cancellation of the document. Admittedly, prima facie third parties are not bound by the document of the description in question and are not obliged to sue for cancellation. They can ignore the document and ask for the appropriate relief that they may be entitled to that footing and pay the proper Court fee thereon without asking cancellation. In a suit for declaration under Sec. 24(a) of the Karnataka Court Fees Act, wherein in addition to declaration, possession of the property is sought, fee shall be computed on the market value of the property or Rs.1, 000.00 whichever is higher. If the prayer is only for declaration and consequential relief of injunction and no relief of possession is sought for, the case would fall under Sec. 24(d) of the Act. Then the Court fee shall be computed to on behalf of the market value of the property or at Rs.1, 000.00 whichever is higher. Even though the suit is filed as seeking declaration that a particular instrument is not binding upon the plaintiff or is null and void or viodable, in substance what the plaintiff is seeking to cancellation of the said instrument, then the case would certainly fall under Sec. 38of the Karnataka Court fees and Suits Valuation Act. If the suit falls under Sec. 38 of the Act, then it has to be valued under that provision where the word 'market value' is conspicuously missing under Sec. 7(2) of the Karnataka Court Fees and Suit Valuation Act which provides for a different valuation in respect of the agricultural land which has to be computed on the basis of the market value under the Act. If when the relief sought by the plaintiff as averred in the plaint does not fall under any of the provisions of the Act, liberty is granted to the plaintiff to give or assess his own valuation and pay the Court fee on the said amount or Rs.1, 000.00 whichever is higher. If when the relief sought by the plaintiff as averred in the plaint does not fall under any of the provisions of the Act, liberty is granted to the plaintiff to give or assess his own valuation and pay the Court fee on the said amount or Rs.1, 000.00 whichever is higher. Since the document in respect of which the plaintiff has sought the aforesaid relief of declaration is not signed by the plaintiff, she is at liberty to give her own valuation and pay the Court fee on the said amount orRs.1, 000.00 whichever is higher. 11. In the present case, the plaintiff has paid the Court fee ofRs.200/- and valued the suit at Rs.40, 00, 000.00 towards her 1/3rdshare as per Sec. 35(2) of the Karnataka Court Fees and Suits Valuation Act and she has paid the said Court fee. Therefore, the Court fee paid by the plaintiff is sufficient. 12. During the course of argument the learned Counsel for the plaintiff has relied upon the following citations :- 1. ILR 1998 KAR 2127 (Vadde Sanna Hulugappa and others Vs.Vadde Sanna Hulugappa and others). In this decision the Hon'ble High Court of Karnataka has held that, "When the plaintiffs are not parties to any of the alienations made by the defendant and others, there was no legal obligation on them to specifically pray that alienations were not binding on them. 2. 2010 SAR (Civil) 402 (Suhrid Singh @ Sardool Singh Vs.Randhir Singh and others). The Hon'ble Apex Court in this case has held that, "There is difference between a prayer for cancellation and declaration in regard to sale deeds. If the prayer is for declaration, that deeds not bind the 'coparcenery' and for joint possession, the plaintiff in the suit was not executant of the sale deeds, then the Court fee is need not be paid on the sale consideration mentioned in the sale deeds. Further it is held that, where the executant of deed wants it to be annulled, he has to seek cancellation of the deed but if anon-executant seeks annulment of a deed, he has to seek declaration that deed is invalid that is it is not binding him and under such circumstances, the Court fee was not computable on the sale consideration mentioned in the sale deed." 3. 2014 (5) KCCR 1218 (DB) (Sri. Sampangi Gowda and others Vs.Sri. Muddanna and another). 2014 (5) KCCR 1218 (DB) (Sri. Sampangi Gowda and others Vs.Sri. Muddanna and another). In this decision the Hon'ble High Court of Karnataka has held that, "If the plaint it is averred that, the plaintiffs and defendants are in joint possession, notwithstanding the fact that they are living separately, even at two different places, in law it makes no difference. In the eye of law, in the case of coparcenery joint family or co-ownership possession of one coparcener or member of the joint family or coowner is possession of all, then the case would fall under Sec. 35(2) of the Act. To take the case out of Sec. 35(2), there should be a clear and specific averment in the plaint that the plaintiff has been excluded from joint possession." The observation made and the principles laid down in the afore said decisions relied upon by the learned Counsel for the plaintiff is aptly applicable to the case on hand. In this case, it is not the case of the defendants that, the plaintiff was an outsider or excluded from the joint possession of the suit schedule property. Further, it is also an admitted fact that, the plaintiff is not a signatory to the said Sale Deed in question. Hence, the valuation made by the plaintiff and the Court fee paid is just and proper and the contentions made by the defendantno.2 that the suit is not properly valued for the purpose of Court fee and jurisdiction is not a tenable contention and the same is hereby negativated. Hence, for the aforesaid discussion and for the aforesaid reasons, the Court proceed to answer Point No.1 in the "Negative". 13. POINT NO.2:- In Upon the discussions made above, the Court proceed to pass the following:- ORDER The preliminary issue is answered in the 'affirmative' by holding that the Court fee paid by the plaintiff is proper." 4. A perusal of the impugned order passed by the Trial Court will indicate that the same does not suffer from any illegality or infirmity warranting interference by this Court in the exercise of its power under Article 227 of the Constitution of India as held by the Apex Court in the case of Radhyesham Vs. Chhabinath (2015) 5 SCC 423 . Accordingly, I find no merit in the petition, same is hereby dismissed.