Dismissed

Mr.Harshvardhan S/O Anilkumar Inchal v. Sri.Vijaykumar Annappa @ Annarao Inchal

Karnataka HC11 Sept 2024WP/102922/2018

Case brief

AI extract

What is this about?

The High Court disposed of a writ petition challenging the Trial Court's negative finding on court fee. The petitioner contended the discussion touched merits; the High Court rejected this and dismissed the petition as futile.

What did the court decide?

Writ petition dismissed with a direction to the Trial Court to decide the matter on merits.

Mr.Harshvardhan S/O Anilkumar Inchal Vs Sri.Vijaykumar… — Property and Title | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:13026 WP No. 102922 of 2018

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IN THE HIGH COURT OF KARNATAKA,

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DHARWAD BENCH

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DATED THIS THE 11^TH DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE H.P.SANDESH

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WRIT PETITION NO. 102922 OF 2018 (GM-CPC)

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BETWEEN:

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MR. HARSHVARDHAN S/O. ANILKUMAR INCHAL, AGE: 40 YEARS, OCC: AGRICULTURE & BUSINESS, "ARIHANT" 4^TH CROSS, BASAV NAGAR, BAILHONGAL, DISTRICT: BELAGAVI.

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…PETITIONER

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(BY SRI. PRASHANT F. GOUDAR, ADVOCATE)

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AND:

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SAROJA HANGARAKI

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Location: HIGH COURT OF KARANTAKA DHARWAD BENCH

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SRI. VIJAYKUMAR ANNAPPA @ ANNARAO INCHAL, AGE: 77 YEARS, MENTALLY RETARDED BY HIS NEXT FRIEND REPRESENTED BY SRI. AJITKUMAR ANNAPPA INCHAL, REPRESENTED BY RESPONDENT NO.2.

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SRI. AJITKUMAR ANNAPPA @ ANNARAO INCHAL AGE: 74 YEARS, OCC: AGRICULTURE & BUSINESS, "SAVITRI", PROFESSOR COLONY, VIDYANAGAR, BAILHONGAL.

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SRI. ANILKUMAR ANNAPPA @ ANNARAO INCHAL, AGE: 69 YEARS, OCC: AGRICULTURE & HOUSEHOLD WORK, "ARIHANT" 4^TH CROSS,

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BASAV NAGAR, BAILHONGAL.

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2 - NC: 2024:KHC-D:13026 WP No. 102922 of 2018

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SHRI. SUKUMAR ANNAPPA @ ANNARAO INCHAL, AGE: 66 YEARS, OCC: AGRICULTURE & BUSINESS, HOUSE NO.872, BILLUR GALLI, BAILHONAL.

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SMT. VIMALAVATI KOM. JAYAPAL CHOUGALE, AGE: 88 YEARS, OCC: HOUSEHOLD WORK, PLOT NO.784/3, SECTOR V, NEAR GOVT. URDU SCHOOL, SRINAGAR, BELAGAVI.

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SMT. NALINAKSHI JINNAPPA WADAGAVE, AGE: 76 YEARS, OCC: HOUSEHOLD WORK, L.I.G. 42, 1^ST MAIN ROAD, MAHANTESH NAGAR, BELAGAVI.

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…RESPONDENTS

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(BY SRI. ROHIT L. SHEELVANT, ADV. FOR R1 & R2; R3-R6 NOTICE DISPENSED WITH)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE NATURE OF CERTIORARI, QUASHING THE ORDER DATED:20.03.2018 PASSED BY THE SENIOR CIVIL JUDGE, BAILHONGAL AT BAILHONGAL IN O.S.NO.83/2012 PRODUCED VIDE ANNEXURE-A ON PRELIMINARY ADDITIONAL ISSUE NO.4 REGARDING THE COURT FEE IN THE NEGATIVE; DIRECT THE RESPONDENTS NO.1 AND 2 TO PAY THE DEFICIT COURT FEE AS PER THE PROVISIONS OF SEC.35(1) OF THE KARNATAKA COURT FEE AND SUIT VALUATION ACT, 1958 AND ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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3 - NC: 2024:KHC-D:13026 WP No. 102922 of 2018

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ORAL ORDER

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(PER: THE HON'BLE MR. JUSTICE H.P.SANDESH)

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Heard the learned counsel for the petitioner and

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learned counsel for the respondents.

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The Trial Court has framed additional issue No.4

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as under:

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“Whether the defendant No.5 proves that the court fee paid by the plaintiffs is not sufficient?”

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The Trial Court having considered this issue as

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preliminary issue, answered the same as negative. The counsel appearing for the petitioner brought to notice of this Court the discussion made with regard to the properties particularly in paragraph Nos.20 and 26, wherein the Trial Court comes to the conclusion that considering the above said admitted facts, that property shown in Part-I and Sl.No.1 of Part-II of Schedule-B and Sl.No.1 and 2 of Schedule-C are the ancestral properties and till today no partition was effected coupled with

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4 - NC: 2024:KHC-D:13026 WP No. 102922 of 2018

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documentary evidence produced by the plaintiffs and cross examination of DW.1, at this stage in absence of full pledged trial, it is sufficient to held that till today joint family consisting of plaintiffs and defendants No.1, 2 and 5 is in existence in the ancestral properties till today no partition was affected and M/s.Vijay Medical and General Stores is the joint family business, having sufficient joint nucleus to purchase other suit properties in the name of plaintiffs, defendants No.1, 2 and 5 since defendants No.1 and 2 not denied the evidence of PW.1 and DW.1 shown his ignorance about the joint family of his father and brothers of his father, who are the present plaintiffs and defendants No.1 and 2. So also, comes to the conclusion that defendants No.1, 2 and 5 are still members of the joint family and till today no partition has taken place among them in the ancestral joint family properties.

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Counsel referring this finding would contend

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that it affects the very merits of the case and unless the case has been decided on merits, this observation shall

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5 - NC: 2024:KHC-D:13026 WP No. 102922 of 2018

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not influence the Trial Court while considering the matter on merits.

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Per contra, the counsel appearing for the

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respondents would contend that when the Trial Court has not considered the issue with regard to the court fee is concerned, writ petition is filed before this Court and this Court allowed the writ petition and directed the Trial Court to treat the same as preliminary issue and accordingly the preliminary issue has been answered by the Trial Court and hence this Court cannot find fault with the same.

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Having heard the petitioner’s counsel and also

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the counsel appearing for the respondents, counsel for the petitioner does not dispute the fact with regard to the answering additional issue No.4 in negative. The main contention is also that observation made in paragraph Nos.20 and 26 touches the merits of the case and the same shall not influence the Trial Court while considering the matter on merits. Hence, there is a force in the contention of the petitioner’s counsel that the discussion

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6 - NC: 2024:KHC-D:13026 WP No. 102922 of 2018

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made by the Trial Court in paragraph No.20 and 26 touches the issue involved between the parties and the same ought not to have been done by the Trial Court and hence, the said discussion shall not influence the Trial Court while considering the matter on merits and the said observation is erroneous in dealing with the issue of court fee.

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With these observations, the writ petition is disposed of.

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Sd/(H.P.SANDESH) JUDGE

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SH CT-MCK List No.: 2 Sl No.: 2

Mr.Harshvardhan S/O Anilkumar Inchal v. Sri.Vijaykumar Annappa @ Annarao Inchal

Case brief

What is this about?

What did the court decide?

Mr.Harshvardhan S/O Anilkumar Inchal v. Sri.Vijaykumar Annappa @ Annarao Inchal

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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