Sri. H.B.Mallikarujunaiah Vs Sri.H.C. Siddalingaswamy

SRI H.B. MALLIKARUJUNAIAH S/O LATE BASAVALINGARADYA AGED ABOUT 73 YEARS RESIDING AT NO.48, "JANGAM" 9TH MAIN, 2ND STAGE BINNY LAYOUT, VIJAYANAGAR BENGALURU - 560 040 AADHAR NO.260893977933 SINCE DEAD BY LRS.

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Digitally signed by NANDINI M S Location: HIGH COURT OF KARNATAKA

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a. SMT. M.B. LALITHAMBA W/O LATE SRI H.B. MALLIKARJUNAIAH AGED ABOUT 66 YEARS RESIDING AT NO.48, "JANGAM" 9^TH MAIN, 2^ND STAGE BINNY LAYOUT, VIJAYANAGAR BENGALURU - 560 040.

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b. SMT. H.M. RAJESHWARI W/O P. SHIVAPRAKASH D/O SRI H.B. MALLIKARJUNAIAH AGED ABOUT 43 YEARS RESIDING AT NO.48, "JANGAM" 9^TH MAIN, 2^ND STAGE BINNY LAYOUT, VIJAYANAGAR BENGALURU - 560 040.

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SRI H.B. SHASHIBHUSHANAIAH @ SHASHIBHUSHAN S/O LATE BASAVALINGARADYA AGED ABOUT 65 YEARS BHAJANEMANE BEDDI WARD NO.2, RAMANAGARA ROAD

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HC-KAR

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KANAKAPURA TOWN RAMANAGARA DISTRICT AADHAR NO.985096191905

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AND ALSO AT RESIDING AT NO.48 "JANGAM", 9TH MAIN, 2ND STAGE BINNY LAYOUT, VIJAYANAGAR BENGALURU - 560 040.

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…PETITIONERS

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(BY SRI RAMESHCHANDRA, ADV.)

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AND:

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SRI H.C. SIDDALINGASWAMY S/O LATE H.B.CHANDRASHEKHARAIAH AGED ABOUT 30 YEARS.

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SMT. KANTHAMMA W/O LATE H.B. CHANDRASHEKHARAIAH AGED ABOUT 59 YEARS.

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SMT. H.C. POORNIMA D/O LATE H.B. CHANDRASHEKHARAIAH AGED ABOUT 39 YEARS.

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SMT. VIJAYAKUMARI D/O LATE H.B. CHANDRASHEKHARAIAH AGED ABOUT 35 YEARS.

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RESPONDENT NO.1 TO 4 ARE RESIDING AT HULIKUNTE VILLAGE DODDABELAVANGALA HOBLI DODDABALLAPURA TALUK.

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SRI PALANETHRAIAH S/O LATE GANGAPPA AGED ABOUT 50 YEARS R/AT HARALUR POST TUMAKUR TALUK, TUMAKUR DISTRICT.

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M/S MERUSHIKHAR REALTY LLP A COMPANY INCORPORATE UNDER THE COMPANIES ACT, HAVING ITS CORPORATE OFFICE AT "SOLUS" FLOOR, 11, NO.2, 1ST CROSS

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J.C.ROAD, BENGALURU - 560 027 REPRESENTED BY ITS DESIGNATED PARTNER SRI KISHORE KUMAR.

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G. MALLIKARJUNAPPA HALAMMA TRUST HAVING OFFICE AT NO.23 2ND FLOOR,PAMADI TOWER 1ST MAIN ROAD, GANDHINAGAR BENGALURU - 09 REPRESENTED BY ITS TRUSTEES.

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…RESPONDENTS

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(BY SRI B.S. MURALI, ADV., FOR R-1 TO R-5, V/O DTD 13.12.2019, NOTICE TO R-6 & R-7 H/S)

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THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ANNEXURE-A DTD26.4.2019 PASSED BY THE LEARNED CIVIL JUDGE, SENIOR DIVISION, DODDABALLAOUR WHILE PASSING ORDER ON I.A.NO.II IN O.S.NO.86/2019 IN RESPECT OF DIRECTION TO PAY THE COURT FEE OF RS.2,47,125/- +1/2 % THE REMAINING AMOUNT EXCEEDING RS.80 LAKHS AS PER ARTICLE 16 OF THE SCHEDULE OF KARNATAKA COURT FEE AND SUIT VALUATION ACT.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S VISHWAJITH SHETTY

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ORAL ORDER

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Plaintiffs are before this Court in this writ petition filed

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under Article 227 of the Constitution of India with a prayer to set aside the order dated 26.04.2019 passed on IA.No.2 in O.S.No.86/2019 passed by the Court of Senior Civil Judge, Doddaballapur, in so far as it relates to directing them to pay

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court fee of Rs.2,47,125/- + 1/2% the remaining amount

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exceeding Rs.80 lakhs as per Article 16 of the 1^st Schedule of the Karnataka Court Fees and Suits Valuation Act, 1958 (for short, 'the Act').

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Heard the learned Counsel for the parties.

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Petitioners have filed O.S.No.86/2019 before the jurisdictional Civil Court at Doddaballapur, seeking the relief of partition and separate possession of their 1/3^rd share in the suit schedule property and also to declare the registered sale deed dated 25.05.2015 executed by plaintiff nos.1 & 2 in favour of defendant no.1 as void document, and to cancel the same.

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In the said suit, the contesting defendants have filed their written statement opposing the suit claim.

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IA.No.2 was filed by defendant no.1 under Order VII Rule 11 (a) & (d) read with Section 151 CPC with a prayer to reject the plaint in O.S.No.86/2019. The said application was opposed by the plaintiffs.

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The Trial Court vide the order impugned, while rejecting IA.No.2 filed by defendant no.1, has passed the impugned

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order directing the plaintiffs to pay deficit court fee as stated herein above. Aggrieved by the same, the plaintiffs are before this Court.

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Learned Counsel for the petitioners having reiterated the grounds urged in the petition, submits that even if the second relief sought in the suit is presumed to be a declaratory relief, the plaintiffs are liable to pay court fee only under Section 24(d) of the Act and not under Section 24(a) & 24(b) of the Act. The suit is valued at Rs.1,000/-, and therefore, court fee is appropriately paid.

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Per contra, learned Counsel for the contesting defendants has opposed the prayer made in the writ petition and submits that under the release deeds which are questioned in the suit, defendant no.1 is put in possession of the suit schedule property. In prayer no.(i), the relief of possession is also sought, and therefore, the suit is required to be valued as provided under Section 24(a) of the Act and not under Section 24(b) & (d) of the Act. The Trial Court was, therefore, justified in passing the order impugned.

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In the suit, the plaintiffs have sought for three reliefs. The first relief is for partition and separate possession of the plaintiffs' 1/3^rd share each in the plaint schedule property, the second relief is to declare the release deeds dated 25.05.2015 executed by plaintiff nos.1 & 2 in favour of defendant no.1 before the Office of the Sub-Registrar, Doddaballapura, as void documents, and to cancel the same, and the third relief is to divide the suit schedule properties by metes and bounds into equal shares and allot two shares to the plaintiffs.

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In the plaint, the first relief is valued under Section 35(2) of the Act and a fixed court fee of Rs.200/- is paid. So far as the second relief is concerned, the said relief is valued under Section 38 of the Act and since the property which is the subject matter of documents are not valued and no consideration was paid, a sum of Rs.25/- each was paid for the relief of cancellation of release deeds dated 25.05.2015.

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A reading of the second prayer would go to show that the relief of declaring the release deeds as void documents is prayed, and therefore, the said relief ought to have been

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valued under Section 24(d) of the Act and not under Section 38 of the Act.

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Section 24 of the Act, reads as under:

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"24. Suits for declaration.- In a suit for a declaratory decree or order, whether with or without consequential relief, not falling under Section 25.-

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(a) where the prayer is for a declaration and for possession of the property to which the declaration relates, fee shall be computed on the market-value of the property or on [rupees on thousand] whichever is higher;

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(b) where the prayer is for a declaration and for consequential injunction and the relief sought is with reference to any immovable property, fee shall be computed on one-half of the market value of the property or on [rupees one thousand] whichever is higher;

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(c) [xxx]

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(d) in other cases, whether the subject-matter of the suit is capable of valuation or not, fee shall be computed on the amount at which the relief sought is valued in the plaint or on [rupees one thousand] whichever is higher."

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Section 24(a) of the Act would be applicable, wherein a

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prayer for declaration and possession of the property to which the declaration relates is made, and Section 24(b) of the Act

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would apply wherein a prayer for a declaration and for consequential relief of injunction is made.

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In the case on hand, no relief of possession of the property for which declaration is sought has been claimed nor the relief of injunction is prayed for. Therefore, the suit is required to be valued under Section 24(d) of the Act.

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Perusal of the plaint would go to show that the relief sought in the plaint is valued at Rs.1,000/-, and therefore, in my considered opinion, the court fee paid by the petitioners is proper, though the second relief in the suit was valued as provided under Section 38 of the Act. Section 38 of the Act would apply in the event the relief of cancellation of the document is sought, but in the present case, the relief sought for is to declare the document as void, and therefore, Section 24 of the Act would be applicable. For the reasons aforesaid, even if the suit is valued under Section 24 of the Act, the court fee on the plaint is sufficient. Under the circumstances, I am of the opinion that the Trial Court was not justified in passing the impugned order. Accordingly, the following order:

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Writ petition is allowed. The impugned order dated

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26.04.2019 passed on IA.No.2 in O.S.No.86/2019 passed by the Court of Senior Civil Judge, Doddaballapur, in so far as it relates to directing them to pay court fee of Rs.2,47,125/- +

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1/2% the remaining amount exceeding Rs.80 lakhs as per

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Article 16 of the 1^st Schedule of the Act, is set aside.

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Sd/-

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(S VISHWAJITH SHETTY)

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JUDGE

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KK

Sri. H.B.Mallikarujunaiah v. Sri.H.C. Siddalingaswamy

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Sri. H.B.Mallikarujunaiah v. Sri.H.C. Siddalingaswamy

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