Smt. G. Jecintha Vs Smt. Thressa

…RESPONDENTS (BY SRI. S. MRUTHYUNJAYA, ADVOCATE FOR R1 TO R4) THIS WP IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO-CALL FOR THE RECORDS, ALLOW THE WRIT PETITION BY QUASHING THE ORDER DATED 22.02.2019 AS PER ANNEXURE-E PASSED BY THE HON'BLE XXXIV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU (CCH-35) IN O.S.NO.1380/2007 ON I.A.IV/18 FILED BY THE DEFENDANTS NO.19, 20, 30 & 35/R-1 TO 4 SEEKING THE DIRECTION OF THE HON'BLE COURT FOR THE PLAINTIFF TO DEPOSIT THE DEFICIT COURT FEE 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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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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NC: 2025:KHC:28093 WP No. 14410 of 2019

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ORAL ORDER

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This writ petition is filed by the petitioner seeking for the following relief:

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"WHEREFORE, the Petitioner prays that this Hon'ble Court may be pleased to:-

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a) Call for the records, allow the Writ Petition by quashing the order dated:22/02/2019 as per Annexure-E passed by the Hon'ble XXXIV Additional City Civil and Sessions Judge, Bengaluru (CCH-35) in O.S.No. 1380/2007 on I.A. IV/18 filed by the Defendants No.19, 20, 30 & 35/Respondents No.1 to 4 seeking the direction of the Hon'ble Court for the Plaintiff to deposit the deficit Court Fee, in the interest of justice and equity.

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b) By granting such other incidental and others consequential relief/reliefs including the costs of the Petition, in the interest of justice and equity."

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Sri. M. Venkatappa, learned counsel appearing for the

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petitioner submits that the petitioner has filed the suit in O.S.No.1380/2007 for relief of declaration that the plaintiff is the descendant of late Chinnaswamy and he is the absolute

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owners of the suit schedule property and consequential relief of permanent injunction against respondents.

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Defendant Nos.19, 20, 30 and 35 have filed an application for rejection of the plaint on the ground that the Court fee paid by the plaintiff for the relief sought is deficit as the property falls within the limits of BBMP. It is submitted that the petitioner has filed detailed objections indicating that the application filed by the defendants is not maintainable as the Order VII of the Code of Civil Procedure (for short 'CPC') is for rejection of plaint under the sub-clauses. The suit may be rejected if it does not disclose cause of action or is barred by law. But, the plaint clearly discloses the cause of action and is also filed as per the prescribed law. It was further submitted that the suit is of the year 2007 and on the date suit schedule property was not within the limits of BBMP. However, the Trial Court has not considered these aspects and allowed the application filed by the defendants by directing the Office to calculate the Court fee on the suit schedule property as on the date of filing of the suit and directed the plaintiff to make good

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of the deficit Court fee by the next date of hearing and file fresh

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valuation slip.

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It is submitted that the Trial Court, if it comes to conclusion that the Court fee paid by the plaintiff is in deficit, it would have framed the issue to that effect, tried the issue and then recorded the finding. However, it has adopted an incorrect procedure of entertaining application filed by the defendants under Order VII Rule 11(a) and (d), which is impermissible. Hence, he seeks to allow the writ petition.

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There is no representation for respondent Nos.1 to 4.

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I have heard the arguments of the learned counsel for the petitioner and meticulously perused the material available on record. I have given my anxious consideration on the submission advanced.

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The pleading and material on record indicate that the petitioner has filed a suit in O.S.No.1380/2017 for relief of declaration that the plaintiff is the descendant of late Chinnaswamy and he is absolute owner of the suit schedule property and also relief of permanent injunction against

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defendants. In the said suit, defendant Nos.19, 20, 30 and 35 filed a common written statement, raising objections with regard to the valuation of the suit schedule property. The said defendants have filed an application under Order VII Rule 11(a) and (d) seeking to direct the petitioner to pay the Court fee on the market value as the same is within the limits of BBMP. The Trial Court considered the said application and allowed the application by directing the plaintiff to make good deficit Court fee after Office calculating the same.

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In my considered view the Trial Court has committed a grave error in ignoring certain facts. Firstly, the application filed by the petitioner is for rejection of plaint under Order VII Rule 11(a) and (d) on the ground that the plaint does not disclose the cause of action and the plaint is barred by any law. The affidavit accompanying the said application does not disclose as to how the plaint does not disclose the cause of action or how the plaintiff is barred under any other law. However, it raised its objection with regard to the assessment of market value of the suit schedule property. Be that as it may, the Trial Court without considering the objection filed by

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the petitioner with regard to the maintainability of the application filed by the aforesaid defendants, proceeded to direct the office to calculate the Court fee on the premise that the suit schedule property falls within the limits of BBMP without ascertaining whether on the date of filing of the suit, the property was within the limits of BBMP and petitioner was required to pay the Court fee as ordered. In my considered view that the Trial Court ought to have considered the issue of Court fee as one of the issue and tried the suit. My view gains support from the Full Bench decision of this Court in the case of

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VENKATESH R. DESAI Vs. SMT. PUSHPA HOSMANI AND

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ORS¹ , wherein it is held that the Trial Court shall consider the issue of Court fee as one of the issues and try the same along with other issues.

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Considering the law and point, I am of the considered view that the writ petition deserves to be allowed.

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For the aforementioned reasons, I proceed to following:

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1 AIR 2019 KARNATAKA 47

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ORDER

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i) The writ petition is allowed .

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ii) The impugned order dated 22.02.2019 passed on I.A.No.IV/18 filed by defendant Nos.19, 20, 30 and 35 under Order VII Rule 11(a) and (d) is set aside. Consequently, I.A is rejected.

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iii) The Trial Court shall frame and consider the issue of Court fee as one of the issues and try the same along with the main matter.

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iv) No order as to costs.

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In view of disposal of the writ petition, I.A.No.1/2022

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would not survive for consideration.

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Sd/(VIJAYKUMAR A. PATIL) JUDGE

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PHM List No.: 1 Sl No.: 33

Smt. G. Jecintha v. Smt. Thressa

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Smt. G. Jecintha v. Smt. Thressa

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