Sri Syed Ismail Vs Sri Hanumanthappa

THIS W.P. IS FILED UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RELEVANT RECORDS. ISSUE A WRIT OF APPROPRIATE NATURE TO SET ASIDE THE ORDERS DTD 06.11.2024 AT ANNX-D PASSED, IN F.R.O.S. NO.1526/2023 BY THE LEARNED PRL. SR. CIVIL JUDGE, BENGALURU RURAL, BENGALURU AND THEREBY FIX A DATE FOR PETITIONER'S APPEARANCE AND PAYMENT OF COURT FEE, AND PERMIT TO PROSECUTE THE SUIT IN THE ENDS OF JUSTICE AND EQUITY.

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

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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HC-KAR

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ORAL ORDER

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This petition is filed seeking for the following reliefs:

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"a) Call for relevant records.

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b) Issue a writ of appropriate nature to set aside the orders dtd 06.11.2024 at Annx-D passed, in F.R.O.S. No.1526/2023 by the learned Prl. Sr. Civil Judge, Bengaluru Rural, Bengaluru and thereby fix a date for petitioner's appearance and payment of court fee, and permit to prosecute the suit in the ends of justice and equity."

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Smt.Siri Rajashekar, learned counsel appearing

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for the petitioner submits that the petitioner had initially filed a suit for injunction and thereafter, sought amendment for the relief of specific performance and the said amendment was allowed. Thereafter, the said Court has returned the plaint for want of jurisdiction to be presented before the learned Senior Civil Judge. It is submitted that the suit was re-presented before the Principal Senior Civil Judge, Bengaluru Rural, Bengaluru. The said suit was dismissed by the Principal Senior Civil Judge on the ground that was no representation for the

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HC-KAR

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plaintiff and also taking note of the office objection raised by the office that the Court fee and the process fee was not paid. In support of her contentions, she placed reliance on the decision of the Co-ordinate Bench in the case of SYED ISMAIL Vs. C.SHIVARAJU¹ , wherein the Co-ordinate Bench has considered a similar issue and set aside the impugned order by directing to register the case and proceed in accordance with law. Hence, she seeks to allow the petition.

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

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The petitioner filed O.S.No.1554/2012 before the II Additional Principal Civil Judge, Bengaluru Rural, Bengaluru, for the relief of injunction. Thereafter, the prayer for amendment of plaint was filed and allowed

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1 W.P.No.22898/2025 dt. 15.9.25

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HC-KAR

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wherein an additional relief of specific performance of the agreement dated 05.01.2012, was sought. The said Court, by exercising the power under Order VII Rule 10 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the CPC') directed the office to return the plaint and further directed the petitioner to present the same before the Principal Senior Civil Judge, Bengaluru Rural, Bengaluru. The records indicate that the papers were forwarded to the Principal Senior Civil Judge, Bengaluru Rural, Bengaluru. The said suit was re-numbered as O.S.F.R.No.1526/2023. The impugned order indicates that the office has raised an objection that the suit is for the relief of declaration and injunction and hence, the Court fee and process fee are not paid. Considering the same, the said Court, on 06.11.2024 dismissed the suit, recording the absence of the plaintiff. It is to be noticed that after re-registration of the plaint, the Trial Court ought to have issued a notice to the petitioner and sought for curing the defect by making good the Court fee. It

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HC-KAR

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would be useful to refer to paragraphs 5 and 6 of the

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aforesaid decision of the Co-ordinate Bench:

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"5. Learned Senior Counsel places reliance upon the judgment rendered by the Coordinate Bench on identical circumstance in W.P.No.100870/2024 disposed on 14.02.2024. The Coordinate Bench has held as follows:

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"A suit in O.S.(FR) No.10/2024 had been filed by the petitioner seeking for specific performance of contract dated 19.07.2021, which was valued by the petitioner under Section 40(A) of the Karnataka Court Fees and Suit Valuation Act (hereinafter referred to as ‘the Act’ for brevity) and a sum of Rs.2,67,125/- was paid as Court Fee for the relief of specific performance. In the said suit, an additional prayer having been sought for being a declaration that two other sale deeds are null and void and not binding on the plaintiff, the office of the Senior Civil Judge and JMFC Hagaribommanahalli put up an office note that Court Fee would also have to be calculated as regards the declaration of sale deeds to be null and void in terms of SubSection (2) of Section 38 of the Act, 1958.

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4. The matter being adjourned to hear on the same noticing that the petitioner was not represented, was adjourned to 23.01.2024 and on that date noticing that plaintiff was again not represented, the suit came to be dismissed as not maintainable. It is challenging same that the aforesaid reliefs have been sought for.

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HC-KAR

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5. The issue of Court Fee being appropriate or not is not one which touches on the maintainability of a suit. At the most, the aspect of proper Court Fee not being paid would be one which is to be determined in terms of Order 7 Rule 11(b) of the Code of Civil Procedure, which provides for - where the relief claimed is undervalued, the plaintiff on being required by the Court to correct the valuation within the time fixed by the Court, failing to do so, then in that event the plaint could be rejected. It is this principle which the Trial Court ought to have applied, calculated the deficit Court Fee and called upon the plaintiff to make payment of the said deficit Court Fee within the time fixed by the Court and it is only in the - 5 - HC-KAR NC: 2025:KHC:36685 WP No. 22898 of 2025 event of the said deficit Court Fee not being paid, then the plaint could be rejected.

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6. In the present case, even Order 7 Rule 11(b) of CPC would not be applicable for the reason that the plaintiff has sought for the relief of specific performance as also for declaration of sale deeds to be null and void and insofar as specific performance is concerned, proper Court Fee has been paid since no objection has been raised in that regard by the office of the Court.

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7. Such being the case, there can be no partial rejection of the plaint. At the most, the relief sought for could have been refused by the Court on account of nonpayment of Court Fee which would have to be done after registering the case and following the due procedure. In the present case, the suit is dismissed as not maintainable on account of non-payment of

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HC-KAR

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Court Fee in terms of Sub-Section (2) of Section 38 of the Act, 1958, which for the aforesaid reason is not permissible. Hence I pass the following:

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ORDER

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i) Writ petition is allowed.

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ii) A certiorari is issued, t he order dated 23.01.2024 passed by Senior Civil Judge in JMFC, Hagaribommanahalli in O.S.(FR) No.10/2024 is set-aside. The suit in O.S.(FR) No.10/2024 is restored. The Trial Court is directed to register the case and proceed with the said case in terms of the observations made above."

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6. In the light of the judgment of the Coordinate

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Bench quoted supra, the petition deserves to succeed as the Coordinate Bench has considered the entire spectrum of law."

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5. In view of the aforesaid observation of the Co-

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ordinate Bench, this petition also deserves to be allowed.

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6. Accordingly, the writ petition is allowed.

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The impugned order dated 06.11.2024 passed on O.S.F.R.No.1526/2023 by the Principal Senior Civil Judge,