Dismissed

S Muralikrishna v. Smt S Shilpa

Karnataka HC10 Nov 2023CRP/232/2023

Case brief

AI extract

What is this about?

This court dismissed a civil revision petition challenging an order that rejected an application for rejection of plaint. It held the trial court could not entertain the rejection application since no separate order determining court fee had been passed, but reserved liberty to file a proper application.

What did the court decide?

Application to reject plaint dismissed. Liberty reserved to file application under Section 11 to determine court fee; Trial Court to consider framing issue on fee.

S Muralikrishna Vs Smt S Shilpa — Property and Title | Karnataka HC (2023)

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1 - NC: 2023:KHC:40454 CRP No. 232 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ CIVIL REVISION PETITION NO.232 OF 2023 (IO)

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BETWEEN:

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S. MURALIKRISHNA S/O. LATE R. SHIVASHANKAR, AGED ABOUT 41 YEARS, RESIDING AT NO.403, 17^TH CROSS, BEML LAYOUT, BASAVESHWARANAGAR, BANGALORE-560096

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…PETITIONER

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(BY SRI. J.M. RAJANNA SETTY, ADVOCATE)

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AND:

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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SMT. S. SHILPA W/O SRI. HARISH KUMAR, D/O LATE R. SHIVASHANKAR, AGED ABOUT 37 YEARS, RESIDING AT NO.3, 8^TH CROSS, SHAKTHI GANAPATHI NAGAR, BASAVESHWARANAGAR, BANGALORE-560079 …RESPONDENT

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(BY SMT. AISHYA, ADVOCATE FOR SRI. RAHAMATHULLA KOTHWAL, ADVOCATE)

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THIS CRP IS FILED UNDER SECTION 115 OF CPC, AGAINST THE ORDER DATED 06.03.2023 PASSED ON I.A.NO.2 IN O.S.NO.4462/2020 ON THE FILE OF THE XII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, DISMISSING THE I.A.NO.2 FILED UNDER ORDER 7 RULE 11(b) OF CPC FOR REJECTION OF PLAINT.

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NC: 2023:KHC:40454 CRP No. 232 of 2023

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

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ORDER

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The petitioner has challenged the correctness of the order dated 06.03.2023 passed by the XII Additional City Civil Judge and Sessions Judge, Bengaluru City in O.S.No.4462/2020 by which, an application (I.A.No.2) filed by him under Order VII Rule 11(b) of Civil Procedure Code,1908 was rejected.

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2. The respondent/plaintiff filed a suit for declaration

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that the sale deed dated 25.06.2015, executed by the petitioner/defendant No.1 in favour of defendant No.3 as null and void and not binding on the plaintiff and for consequential reliefs.

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The registry of the Trial Court had raised objection No.6 to hear regarding the payment of Court fee under Section 38(1) of the Karnataka Court Fees and Suits Valuation Act, 1958. The petitioner/defendant No.1 entered appearance and filed an application under Order VII Rule 11(b) of Civil Procedure Code, to reject the plaint for non-payment of court fee under Section 38(1) of the Karnataka Court Fees and Suits Valuation Act, 1958. The Trial Court in terms of the impugned

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NC: 2023:KHC:40454 CRP No. 232 of 2023

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order dated 06.03.2023 rejected the said application on the ground that the plaintiff had sought for declaration that the sale deed dated 25.06.2015 was not binding on her and therefore the Court fee paid was sufficient.

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Being aggrieved by the said order, the defendant No.1 is before this Court.

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Learned counsel for the petitioner/defendant No.1 submitted that when once the office note was put up regarding the proper Court fee payable under Section 38(1) of the Karnataka Court Fees and Suits Valuation Act, 1958, it was incumbent upon the Court to decide it. Since it did not pass any orders, the defendant No.1 was forced to file an application

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under Order VII Rule 11(b) of Civil Procedure Code. He contends that the plaintiff had claimed that the defendant No.1 was not authorized under the power of attorney executed in his favour to convey the suit property, but the power of attorney was executed in favour of defendant No.1 by plaintiff only to look after the properties. However, the defendant No.1 had conveyed it to defendant No.3 in terms of the sale deed dated 25.06.2015. Therefore, the plaintiff claimed that the said

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4 - NC: 2023:KHC:40454 CRP No. 232 of 2023

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document executed by the defendant No.1 in favour of defendant No.3 was null and void and not binding upon her.

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The registry of the Trial Court having raised the objection with regard to Court fee payable, it was incumbent upon the Trial Court to have considered the question whether the Court fee paid on the suit was proper or not, before registering the suit, in view of the mandate contained under Section 11 of the Karnataka Court Fees and Suits Valuation Act, 1958 which reads as follows:

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" 11. Decision as to proper fee in courts.-

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(1) xxxx

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(2) xxxx

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(3) xxxx

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(4)(a)xxxx

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(b) If the court of appeal decides that the fee paid in the lower court is not sufficient, the court shall require the party liable to pay the deficit fee within such time as may be fixed by it."

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No doubt, even if the suit is registered, the

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defendant No.1 is still entitled to question the correctness of

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5 - NC: 2023:KHC:40454 CRP No. 232 of 2023

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the Court fee paid by the plaintiff on the suit. If the Court passes an order under Section 11 of the Karnataka Court Fees and Suits Valuation Act, 1958 determining the correct Court fee payable and if the plaintiff fails to do so, then the defendant No.1 is entitled to file the application under Order VII Rule 11(b) of Civil Procedure Code, 1908 to reject the plaint.

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In the present case, the Court has not passed any order either under Section 11 of Karnataka Court Fees and Suits Valuation Act, 1958 or under any other provisions of law, after registering the plaint. Therefore, the question of entertaining the application under Order VII Rule 11(b) of Civil Procedure Code, 1908 does not arise.

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Therefore, the application is liable to be rejected, though not on the ground mentioned in the impugned order, but on the other ground mentioned in this order.

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In view of the above matter, the petition is dismissed.

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However, liberty is reserved to the defendant No.1/petitioner to file appropriate application under Section 11

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6 - NC: 2023:KHC:40454 CRP No. 232 of 2023

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of the Karnataka Court Fees and Suits Valuation Act, 1958 requesting the Court to determine the appropriate Court fee payable. In that event, the Trial Court shall consider the same and pass appropriate orders. Alternatively, the Trial Court may also consider framing of an issue regarding Court fee, so that the parties can adduce evidence on the correct Court fee payable.

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Sd/JUDGE

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List No.: 1 Sl No.: 38

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S Muralikrishna v. Smt S Shilpa

Case brief

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S Muralikrishna v. Smt S Shilpa

Case brief

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