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Madhukar S/O Madhavrao Athanikar v. Smt.Sudha W/O Devshankar Prasad

Karnataka HC25 Aug 2021WP/103549/2019

Case brief

AI extract

What is this about?

Petitioner challenging interim order deciding valuation and court fee as a preliminary issue. Court set aside order directing trial court to decide valuation issue with final disposal, following Full Bench precedent.

What did the court decide?

Impugned order on Issue No.4 set aside. Trial Court directed to decide valuation and other issues at final disposal within 9 months.

Madhukar S/O Madhavrao Athanikar Vs Smt.Sudha W/O… — Property and Title | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

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DATED THIS THE 25^TH DAY OF AUGUST, 2021

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BEFORE

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THE HON’BLE MR.JUSTICE S.R. KRISHNA KUMAR

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WRIT PETITION NO. 103549/2019 (GM-CPC)

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BETWEEN:

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MADHUKAR S/O MADHAVRAO ATHANIKAR, AGE: 88 YEARS, OCC.: BUSINESS, R/O: H. NO. 775, KHANAPUR ROAD, ANAGOL, BELAGAVI, TQ & DIST: BELAGAVI.

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...PETITIONER

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(BY SRI SHIVARAJ P. MUDHOL, ADVOCATE)

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AND:

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SMT. SUDHA W/O DEVSHANKAR PRASAD, AGE: 79 YEARS, OCC.: RETIRED TEACHER, R/O: 331, DOTORBHAT, OLD GOA-403 402.

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SHRI. SHRIRAM S/O SHRIKRISHNA ATHANIKAR, AGE: 41 YEARS, OCC.: SERVICE, R/O 31/32, SANJHAY APARTMENT 743-A WARD TIMBER MARKET, KOLHAPUR.

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SMT VIMAL @ SHUBHADA, W/O BHARGAV KETKAR, AGE: 75 YEARS, OCC.: RETIRED TEACHER, R/O: 6/3B, RAMMOY ROAD, BHAVANIPUR, KOLKATTA-25.

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SMT. SULABHA W/O SURENDRA ATHANIKAR, AGE: 65 YEARS, OCC.: RETIRED GOVT. SERVANT, R/O: A4/1 G-3, ESSAR RESIDENCY, AMARAL TALEGAON, PANJI, GOA-403 002.

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SHRI SAGAR S/O SURENDRA ATHANIKAR, AGE: 45 YEARS, OCC.: BUSINESS, R/O: A4/1 G-3, ESSAR RESIDENCY, AMARAL TALEGAON, PANJI, GOA-403 002.

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SHRI AKASH S/O SURENDRA ATHANIKAR, AGE: 39 YEARS, OCC.: BUSINESS, R/O: A4/1 G-3, ESSAR RESIDENCY, AMARAL TALEGAON, PANJI, GOA-403 002.

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SMT. NALINI W/O MORESHWAR THITE, AGE: 81 YEARS, OCC.: HOSUEWIFE, R/O: 15/233, KANNAMWAR NAGAR, VIKROLI (E) MUMBAI, MAHARASHTRA-400 083.

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SMT. KARUNA ARUN APTE, AGE: 71 YEARS, OCC: HOUSEWIFE, R/O: H. NO. 2-2-25/4/B (279), DURGABAI DESHMUKH COLONY, VIDYANAGAR, BAGH AMBARPETH, NEAR SHIVAM, HYDERABAD-500 013.

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ARATI W/O DHANANJAY PATIL, AGE: 49 YEARS, OCC.: SERVICE, R/O: 754/755, AWARD PLAT 2, OPERA TOWER TIMBER MARKET KOLHAPUR, MAHARASHTRA.

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SMT. VIDYA @ VINAYA, W/O VASUDEV WAKALKAR, AGE: 66 YEARS, OCC.: HOUSEWIFE, R/O: DHANASHREE CO-OPERATIVE HOUSING SOCIETY, OPP: VITHALDHAM, NEAR ALANKAR POLICE STATION, PUNE, MAHARASHTRA.

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THE AUTHORIZED SIGNATORY, BIG BAZAR (FUTURE VALUE RETAIL LIMITED), H. NO. 775, RS NO. 28/3, KHANAPUR ROAD,

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ANAGOL, BELAGAVI.

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THE DIVISIONAL MANAGER, INDIAN OIL CORPORATION LIMITED, SY. NO. 28/3, KHANAPUR ROAD, ANAGOL, BELAGAVI.

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…RESPONDENTS

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(BY SRI MRUTYUNJAY TATA BANGI, ADVOCATE FOR R1, R3 TO R6 AND R9)

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(R2-DECEASED) (NOTICE TO R7 & R10 IS DISPENSED WITH) (NOTICE TO R8 & R11 IS SERVED)

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(BY SRI C.V. ANGADI, ADVOCATE FOR RESONDENT NO.12)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO ISSUE WRIT IN THE NATURE OF CERTIORARI TO QUASH THE IMPUGNED ORDER DATED 17.12.2018 IN O.S.NO.369/2015 ON ISSUE NO.4 PASSED BY THE LEARNED III ADDL. SENIOR JUDGE & CJM, BELAGAVI VIDE ANNEXURE-D & ETC.

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THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT, MADE THE FOLLOWING:

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ORDER

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This petition is directed against the impugned order

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dated 17.12.2018 passed in O.S.No.369/2015 by the III

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Additional Senior Civil Judge and C.J.M, Belagavi (for

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short ‘the trial Court’), whereby the trial Court came to

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the conclusion that the suit filed by the respondent Nos.1

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to 6/plaintiffs for partition and separate possession of

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their alleged share in the suit schedule properties has been correctly valued and the Court fee paid was sufficient and proper thereby answering preliminary Issue/Issue No.4 in the affirmative in favour of the plaintiffs.

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Heard Sri Shivaraj P.Mudhol, learned counsel

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for the petitioner and Sri M.T.Bangi, learned counsel for respondent Nos.1, 3 to 6 and 9 and Sri C.V.Angadi, learned counsel for respondent No.12.

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Though the several contentions have been urged by both sides with regard to valuation of the suit made by the plaintiffs and the Court fee paid on the plaint, in the light of the decision of the Full Bench of this Court in the case of Venkatesh R. Desai vs. Smt. Pushpa Hosmani and Others , reported in ILR 2018 KAR 5095 , wherein, it is clearly held that the issue regarding suit valuation and Court fee, so long as it does not effect the

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jurisdiction of the trial court, will necessarily have to be decided along with other issues in the suit and not as a preliminary issue, without expressing any opinion on the merits/de-merits of the rival contentions including the rival contentions with regard to valuation and Court fee, I deem it just and appropriate to dispose off this petition by setting aside the impugned order and directing the trial Court to decide the Issue No.4 relating to valuation and Court fee along with other issues at the time of final disposal of the suit.

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In the result, I pass the following :

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ORDER

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Petition is disposed off.

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Impugned order dated 17.12.2018 passed in O.S.No.369/2015 on Issue No.4 by the III Additional

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Senior Civil Judge and C.J.M., Belagavi is hereby set aside.

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The trial Court is directed to dispose off the suit on

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merits by deciding all issues including issue relating to valuation and Court fee along with other issues, at the time of final disposal of the suit, after giving sufficient opportunity to all parties, bearing in mind the decision of

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the Full Bench of this Court in Venkatesh R. Desai’s case

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( supra ).

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All rival contentions on merits including the contentions with regard to valuation and Court fee are kept upon to be decided by the trial Court at the time of final disposal of the suit.

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The trial court is directed to dispose off the suit as expeditiously as possible and preferably within a period of nine months from the date of receipt of a copy of this order.

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SD JUDGE

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CKK

Madhukar S/O Madhavrao Athanikar v. Smt.Sudha W/O Devshankar Prasad

Case brief

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Madhukar S/O Madhavrao Athanikar v. Smt.Sudha W/O Devshankar Prasad

Case brief

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