Allowed

Sri. Ashok S/O Shankrappa Malladad v. Sri. Basayya S/O Paramayya Hiriyalmath

Karnataka HC2 Dec 2022WP/109217/2017

Case brief

AI extract

What is this about?

The High Court allowed the writ petition under Articles 226 and 227 of the Constitution of India, quashed the impugned order treating the court fee plea as a preliminary issue, and directed the trial court to frame a specific issue regarding the propriety of court fee paid. The court held that fee must be calculated on both recovery and damages claims.

What did the court decide?

The impugned order dated 10.08.2017 is quashed; an issue on the correctness of court fee is to be framed; directions for expeditious disposal of the suit.

Sri. Ashok S/O Shankrappa Malladad Vs Sri… — Civil Procedure and Limitation | Karnataka HC (2022)

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WP No. 109217 of 2017

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 2^ND DAY OF DECEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ WRIT PETITION NO. 109217 OF 2017 (GM-CPC)

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BETWEEN:

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SRI. ASHOK S/O SHANKRAPPA MALLADAD AGE:42 YEARS, OCC:AGRICUALTURE and BUSINESS R/O KALLIHAL VILLAGE

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TAL AND DIST:HAVERI

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…PETITIONER

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(BY SRI. SRINAND A PACHHAPURE, ADVOCATE

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AND SMT.PALLAVI S PACHCHAPURE, ADVOCATE)

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AND:

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SRI. BASAYYA S/O PARAMAYYA HIRIYALMATH AGE:37 YEARS, OCC:AGRICULTUE AND BUSINESS R/O BASAVESHWAR NAGAR HAVERI

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…RESPONDENT

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(BY SRI. M H PATIL, ADVOCATE AND SRI. H M PATIL, ADVOCATE)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DATED:10.08.2017 PASSED BY THE COURT OF PRINCIPAL SENIOR CIVIL JUDGE AND CJM, HAVERI ON I.A.NO.4 IN O.S.NO.78/2014 MARKED AT ANNEXURE-A AND CONSEQUENTLY ALLOW THE I.A.NO.4 MARKED AT ANNEXURE-E.

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WP No. 109217 of 2017

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THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is before this Court seeking for the following reliefs:

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“To set aside the order dated:10.08.2017 passed by the Court of Principal Senior Civil Judge and CJM, Haveri on I.A.No.4 in O.S.No.78/2014 marked at Annexure-A and consequently allow the I.A.No.4 marked at Annexure-E.”

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Suit in O.S.No.78/2014 had been filed before the Principal Senior Civil Judge and CJM, Haveri seeking for recovery of Rs.10,00,000/- with additional damages of Rs.10,00,000/-. Issues having been framed, I.A.No.4 came to be filed by the defendant contending that the defence of the defendant that court fee paid is improper has not been considered and proper issue has not been framed and as such defendant sought for recasting of issues framed under Order 14 Rule 5 of CPC by including an issue

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WP No. 109217 of 2017

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as regards whether the court fee paid is proper or not.

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Though the said application was not objected to, the application came to be rejected by way of impugned order dated 10.08.2017 coming to a conclusion that the court fee paid is sufficient since recovery of Rs.10,00,000/- was sought for and sufficient court fee of Rs.62,125/- was paid thereon.

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It is aggrieved by the same, the petitioner is before this Court.

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Learned counsel for the petitioner submits that apart from the recovery of Rs.10,00,000/-, damages of Rs.10,00,000/- has been sought for which has not been valued and the same has not been taken into consideration while passing the impugned order.

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Be that as it may. Learned counsel for the petitioner submits that the trial Court has treated I.A.No.4 as if

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WP No. 109217 of 2017

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it is an application to treat the court fee as preliminary issue and passed an order which is not permissible. The trial Court ought to have framed an issue which could have provided an opportunity to both the parties to lead their evidence, which has been deprived on account of the order passed and as such, she submits that the impugned order is required to be set aside.

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Per contra, learned counsel for the respondent fairly submits that the plaintiff had in fact not filed any objections to the said application and he has no objections to allowing of the application.

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Heard learned counsel for both parties. Perused the papers.

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The suit having been filed for recovery of Rs.10,00,000/and for additional damages of Rs.10,00,000/- is not in dispute. Thus, the court fee would have to be paid on both prayers and not only

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WP No. 109217 of 2017

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on the recovery of the money since the same are not in the alternate to each other but in conjunction with each other.

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In view thereof, I am of the considered opinion that the trial Court ought not to have considered the application as an application for treating the issue of court fee as preliminary issue but ought to have framed necessary issue in relation thereto and provided sufficient opportunity to the parties to lead

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their evidence.

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In view of the above, I pass the following:

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ORDER

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i. Writ petition is allowed. A certiorari is issued. Order dated 10.08.2017 passed by the Principal Senior Civil Judge and CJM, Haveri in O.S.No.78/2014 on I.A.No.4 at Annexure-A is hereby quashed.

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WP No. 109217 of 2017

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ii. I.A.No.4 is allowed the trial Court is directed to

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frame an additional issue as “Whether the court fee paid by the plaintiff is correct and proper” and proceed thereafter.

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iii. Considering that the suit is of the year 2014, the trial Court is directed to dispose of the matter as expeditiously as possible .

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iv. The submission made by Smt.Pallavi S Pachchapure, learned counsel for the petitioner and Sri.M.H.Patil, learned counsel for the respondent that the parties will co-operate with the trial Court for expeditious disposal of the matter is placed on record.

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SH List No.: 1 Sl No.: 25

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Sd/JUDGE

Sri. Ashok S/O Shankrappa Malladad v. Sri. Basayya S/O Paramayya Hiriyalmath

Case brief

What is this about?

What did the court decide?

Sri. Ashok S/O Shankrappa Malladad v. Sri. Basayya S/O Paramayya Hiriyalmath

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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