Allowed

Sri. v. Manohar v Smt. K.J. v Jayalakshmi

Karnataka HC18 Dec 2024WP/8145/2022

Case brief

AI extract

What is this about?

A plaintiff challenging a trial court order requiring revaluation under Section 35(1) for a partition suit. The High Court held court fee sufficiency could not be decided as a preliminary issue when plaint asserted joint possession, set aside the order, and directed it be answered after full-fledged trial.

What did the court decide?

Impugned order dated 04.07.2012 set aside; Trial Court directed to answer court-fee issue after full-fledged trial; all contentions kept open.

Sri. v. Manohar Vs Smt. K.J. v. Jayalakshmi — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:52474 WP No. 8145 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO. 8145 OF 2022 (GM-CPC)

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BETWEEN:

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SRI. V. MANOHAR S/O SRI. V. VENUGOPALA NAIDU, AGED ABOUT 61 YEARS RESIDING AT NO.54, BENSON CROSS ROAD, BENSON TOWN, BANGALORE-560046. (BY SRI. ARUN B.K., ADVOCATE)

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…PETITIONER

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AND:

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SMT. K.J.V. JAYALAKSHMI W/O LATE V. VENUGOPALA NAIDU DECEASED

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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SRI. V. KESHVAMURTHY S/O SRI. V. VENUGOPALA NAIDU AGED ABOUT 65 YEARS RESIDING AT NO.54, BENSON CROSS ROAD, BENSON TOWN, BANGALORE-560 046.

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SRI. V. VENKATAPATHY S/O SRI V. VENUGOPALA NAIDU AGED ABOUT 55 YEARS RESIDING AT NO.54, BENSON CROSS ROAD, BENSON TOWN, BANGALORE-560 046.

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SRI. K.C. SIDDAVEERAPPA

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S/O LATE SRI. K.P. SHETTY SINCE DECEASED REPRESENTED BY HIS LRS

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SMT. N.P. SHYLAJA W/O LATE SRI. K.C. SIDDAVEERAPPA AGED ABOUT 66 YEARS RESIDING AT NO.54, BENSON CROSS ROAD, BENSON TOWN, BANGALORE-560 046.

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SRI. SHIVAKUMAR S/O LATE SRI K C SIDDAVEERAPPA AGED ABOUT 48 YEARS RESIDING AT NO.54, BENSON CROSS ROAD, BENSON TOWN, BANGALORE-560 046.

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SMT. RUPA D/O LATE SRI. K.C. SIDDAVEERAPPA AGED ABOUT 44 YEARS RESIDING AT NO.54, BENSON CROSS ROAD, BENSON TOWN, BANGALORE-560 046.

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SMT. RAMAIYA D/O LATE SRI. K.C. SIDDAVEERAPPA AGED ABOUT 42 YEARS RESIDING AT NO.54, BENSON CROSS ROAD, BENSON TOWN, BANGALORE-560 046.

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SRI. ZAHOOR MOHAMMED S/O LATE M. SHARIF, MAJOR, PROPRIETOR: STAR OIL CORPORATION NO.54, BENSON CROSS ROAD, BENSON TOWN, BANGALORE-560 046.

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3 - NC: 2024:KHC:52474 WP No. 8145 of 2022

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SRI. HAROON AHMED S/O NOT KNOWN AGED ABOUT 68 YEARS, PROPRIETOR: BENSON AUTO GARAGE NO.54, BENSON CROSS ROAD, BENSON TOWN, BANGALORE-560 046.

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MR. ALEEM S/O NOT KNOWN AGED 83 YEARS NO.54, BENSON CROSS ROAD, BENSON TOWN, BANGALORE-560046. (SUIT AGAINST DEFENDANT NO.7 DISMISSED AS PER THE MEMO DATED 29.03.2005. HENCE NOT ARRAYED AS A PARTY)

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SRI. N. RAJAGOPALA REDDY S/O NOT KNOWN PROPREITOR AGED ABOUT 63 YEARS NO.54, BENSON CROSS ROAD, BENSON TOWN, BANGALORE-560046.

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SRI. MADANLAL G., S/O SRI. GHEWARCHAND AGED ABOUT 71 YEARS RESIDING AT GROVER'S COTTAGE, GOODSHED ROAD, OOTY-643001.

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SMT. V. RUKMINI W/O SRI M. VENUGOPALA NAIDU AGED ABOUT 74 YEARS RESIDING AT NO.54, BENSON CROSS ROAD, BENSON TOWN, BANGALORE-560046.

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SMT. V. SHAKUNTALA W/O SRI. CHIKKAMUNIYAPPA AGED ABOUT 70 YEARS

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RESIDING AT NO.54, BENSON CROSS ROAD, BENSON TOWN, BANGALORE-560046.

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SMT. V. PRAMILA W/O SRI. KRISHNAN AGED ABOUT 66 YEARS RESIDING AT NO.54, BENSON CROSS ROAD, BENSON TOWN, BANGALORE-560046.

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SMT. V. SULOCHANA W/O SRI. SOMASHEKHAR AGED ABOUT 63 YEARS RESIDING AT NO.54, BENSON CROSS ROAD, BENSON TOWN, BANGALORE-560046.

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…RESPONDENTS

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(BY MS. AISHWARYA PRASAD, ADVOCATE FOR RESPONDENT NOS.1 AND 2;

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SRI. ASHOK B. PATIL, ADVOCATE FOR RESPONDENT NOS.13 AND 14;

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SRI. SHIVARUDRAPPA SHETKAR, ADVOCATE FOR RESPONDENT NO.10;

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NOTICE SERVED ON RESPONDENT NOS.11 AND 12;

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VIDE ORDER DATED 18.12.2024, NOTICE TO RESPONDENT NOS.3 TO 9 IS DISPENSED WITH)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 04.07.2012 PASSED BY THE I ADDL.CITY CIVIL AND SESSIONS JUDGE IN OS.NO.2678/2004 AS PER ANENXURE-B AND ETC.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE R. NATARAJ

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5 - NC: 2024:KHC:52474 WP No. 8145 of 2022

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ORAL ORDER

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The plaintiff in O.S.No.2678/2004 pending trial before the I Additional City Civil and Sessions Judge, Bengaluru City (henceforth referred to as 'Trial Court') is before this Court challenging an order dated 04.07.2012 by which, it directed the plaintiff to value the suit under Section 35(1) of the Karnataka Court Fee and Suits Valuation Act, 1958 (henceforth referred to as 'Act of 1958') instead of 35(2) of the Act of 1958.

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The parties shall henceforth be referred to as they were arrayed before the Trial Court. The petitioner herein was the plaintiff, while the respondents were the defendants before the Trial Court.

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A suit in O.S.No.2678/2004 was filed for partition and separate possession of the plaintiff's share in the suit schedule properties. The plaintiff claimed that the suit schedule properties were owned and possessed by his great grandfather Sri. K.J. Subbarayalu Naidu, who died on 07.04.1916 leaving behind his son Sri. Raja Venkatapathy Naidu. The plaintiff claimed that after the death of Mr. Raja Venkatapathy Naidu on 30.11.1956, the suit schedule properties were succeeded by his grandmother Smt. Rani Puttamma Nagathi. He claimed that

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Smt. Rani Puttamma Nagathi had two sons and a daughter named, Sri. K.J. Ramappa Naidu, Sri. K.J. Parthasarathy and Smt. K.J.V. Jayalakshmamma (defendant No.1). He claimed that aforesaid Sri. K.J. Ramappa Naidu and Sri. K.J. Parthasarathy lived with their father at Kuppam Palace. Sri. K.J. Parthasarthy died a bachelor before attaining the age of majority and Sri. K.J. Ramappa Naidu married and thereafter died at Kuppam. The plaintiff therefore, contended that the legal heirs of Sri. K.J. Ramappa Naidu are now at Kuppam Palace, Chittoor District, while Smt. Rani Puttama Nagathi, her daughter (defendant No.1) and grandchildren consisting of the plaintiff and defendant Nos.2 and 3 together constituted a joint family and they were in possession of the suit schedule properties. The plaintiff therefore, contended that he too was entitled to a share in the suit schedule properties and thus sought for partition.

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The defendant Nos.1 and 4 filed separate written statement. They denied that the plaintiff was in joint possession of the suit schedule properties, who contended that they were in absolute ownership of the suit schedule properties and that

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NC: 2024:KHC:52474 WP No. 8145 of 2022

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the plaintiff was not entitled to any share in any portion of the suit schedule properties.

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Based on these contentions, the Trial Court framed issues one of which, was relating to sufficiency of the Court fee paid by the plaintiff.

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The Trial Court considered the issue regarding sufficiency of Court fee as preliminary issue and recorded evidence of the plaintiff and in terms of the impugned order, held that the plaintiff was not in joint possession and therefore, directed the plaintiff to file a fresh valuation slip valuing the suit properties under Section 35(1) of the Act of 1958.

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Being aggrieved by the said order, the plaintiff is

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before this Court in this writ petition.

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The learned counsel for the plaintiff contended that the Trial Court committed an error in treating the issue regarding sufficiency of Court fee as preliminary issue. He submitted that the question whether the plaintiff was in joint possession of the suit schedule properties had to be ascertained after a full-fledged trial and the Trial Court committed an error in answering the said issue against the plaintiff based on the

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evidence of the plaintiff. In support of his contention, he relied upon the judgment of the Full Bench of this Court in Venkatesh R. Desai vs. Smt. Pushpa Hosmani and others

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[ILR 2018 KAR 5095] and contended that an issue could be treated as preliminary issue only if it went to the root of the matter, such as issue of jurisdiction of the Court trying the suit. He therefore, contends that the Trial Court committed an error in treating the issue regarding sufficiency of the Court fee as preliminary issue.

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Per contra, the learned counsel for the defendant Nos.2 and 3 submitted that the impugned order was passed in the year 2012 and this writ petition is filed in the year 2022. She therefore, contends that the petition is highly belated and therefore, the impugned order should not be interfered with. Besides this, she contends that the defendant Nos.1 and 4 had categorically stated in the written statement that the suit schedule properties were not ancestral properties and that the plaintiff was not in joint possession and therefore, the Trial Court was right in directing the plaintiff to value the suit under Section 35(1) of the Act of 1958.

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NC: 2024:KHC:52474 WP No. 8145 of 2022

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I have considered the submissions of the learned

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counsel for the plaintiff as well as the learned counsel for the defendant Nos.2 and 3.

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The suit was filed on the premise that the plaintiff was in joint possession of the suit schedule properties. This was however, denied by the defendants and therefore, the Trial Court had framed an issue regarding sufficiency of Court fee paid. The Trial Court must have held a detailed trial to answer this issue and could not have treated it as a preliminary issue, as the suit on the face of it, was properly valued in view of the assertion made by the plaintiff that he was in joint possession of the suit schedule properties. The question whether the plaintiff was in joint possession of the suit schedule properties or not could be ascertained only after a detailed trial, where the defendants also could be cross-examined and the fact of joint possession could be elicited from the defendants. In the case on hand, the defendants have not entered the witness box and therefore, the evidence adduced before the Trial Court in support of the preliminary issue is not complete. Under the circumstances, the Trial Court committed an error in treating the issue of sufficiency of Court fee as preliminary issue.

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This is also the law declared by the Full Bench of this Court in Venkatesh R. Desai, referred supra. The Full Bench while considering the question, whether the issue regarding Court fee could be treated as preliminary issue held as follows:

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"33. In fact, the principles which we have indicated above had been applied, though without stating in specific terms, by the other Division Bench of this Court in the case of Nanjamma (supra), when it was held that the plaint averment, of the property being in joint possession, was sufficient to bring the valuation of the suit within the ambit of Section 35 (2) of the Act of 1958; and taking of any evidence at the preliminary stage for the purpose of court fees would be of no effect or consequence. The same principle was applied in the case of LB reference in Renuka Manghnani (supra) too. The other decisions by the learned Judges sitting singly, which have essentially been rendered by following the decision in Veeragouda’s case, cannot be approved."

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In that view of the matter, the impugned order passed by the Trial Court warrants interference.

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NC: 2024:KHC:52474 WP No. 8145 of 2022

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Consequently, this writ petition is allowed . The impugned order dated 04.07.2012 passed by the I Additional City Civil and Sessions Judge, Bengaluru City in O.S.No.2678/2004 is set aside. The Trial Court is directed to answer the issue regarding sufficiency of the Court fee paid along with other issues after a full-fledged trial. All contentions are kept open.

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In view of disposal of the writ petition, pending I.As., if any, do not survive for consideration and the same stand disposed off.

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Sd/(R. NATARAJ) JUDGE

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PMR

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List No.: 1 Sl No.: 57

Sri. v. Manohar v Smt. K.J. v Jayalakshmi

Case brief

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Sri. v. Manohar v Smt. K.J. v Jayalakshmi

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