Marianist Trust Vs Sri Thimma Reddy

T. SOMANATH S/O THIMMA REDDY, R/O HELALLIGE VILLAGE, ATTIBELE HOBLI, ANEKAL TALUK BANGALORE RURAL DISTRICT - 562 107 AS AN HEIR OF HIS FATHER AND IN HIS PERSONAL CAPACITY

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MR. VIVEK M ALBUQUERQUE S/O L.V.P. ALBUQUERQUE, AGED ABOUT 63 YEARS, R/O NO.65, VIVEKANANDA NAGAR, 1ST CROSS, BANGALORE - 560 033.

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…RESPONDENTS

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(BY SRI. CHENNARAYA REDDY S, ADVOCATE FOR R1 TO R4; VIDE ORDER DATED 06.02.2025, NOTICE TO R5 DISPENSED WITH)

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THIS W.P IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO CALL FOR RECORDS IN O.S.NO.276/2006 PENDING ON THE FILE OF THE LEARNED SENIOR CIVIL JUDGE ANEKAL AND ETC.,

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

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NC: 2025:KHC:5501 WP No. 49820 of 2017

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CORAM: HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

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ORAL ORDER

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Aggrieved by the orders passed in I.A.No.20 dated 23.09.2017 in O.S.No.276/2006 by the Senior Civil Judge, Anekal, whereby the Court had dismissed the application filed by defendant No.2 seeking a direction to consider the Court Fees before proceeding with the case.

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The plaintiff had filed the suit for declaration and injunction. According to the plaintiff, the suit schedule property is an agricultural property and he had paid the Court Fees under section 24(d) of the Karnataka Court Fess and Suits Valuation Act, 1958. It is the case of the defendants that even before filing of the suit, the land was converted from agricultural to non-agricultural and the Court Fees has to be paid considering it as a non-agricultural property. The Court had dismissed the application. While dismissing the application by way of the impugned order, the Court observed that it is not the case of the plaintiff that he has converted the suit schedule property into non-agricultural purpose. It is the contention of defendant No.2 that after he purchased land he

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NC: 2025:KHC:5501 WP No. 49820 of 2017

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got converted the suit schedule property into non-agricultural purpose. Hence, for the act done by defendant No.1, the plaintiff shall not be made liable to pay the Court fees. If at all the land has been converted by the plaintiff himself and thereafter, the plaintiff sought for the relief of the declaration, then the contention raised by defendant No.2 could have been considered and for the purpose of determination of the Court Fees, the plaint averments has to be considered. The Court also discussed about how the matter has been dragged on. Further, it is observed that even if defendant no.2 prays that the plaintiff has to pay the Court Fees on the valuation of the GPA as the plaintiff has sought declaration to declare that the GPA is a fraud document. Nothing prevented the Court to direct the plaintiff to pay the Court Fees even at the later stage. Hence, there are no grounds to entertain the IA and accordingly, dismissed the application.

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Learned counsel appearing for the

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petitioner/defendant No.2 submits that such a finding of the Court is perverse. He submitted that the Court Fees has to be paid as per the nature of the land as on the date of filing of the suit and but not basing on who has converted it, whether it is

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NC: 2025:KHC:5501 WP No. 49820 of 2017

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the plaintiff or the defendant. He submits that findings of the Court are contrary to law and contrary to the facts.

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Learned counsel appearing for the respondents / plaintiffs submits that in light of the settled law, the issue what is the Court Fees has to be paid, the Court can always deal with the same along with other issues, unless it an issue with regard to the jurisdiction of the Court. It is submitted that he had relied on Full Bench judgment of this Court in the case of Venkatesh R Desai represented by his Aower Of Attorney Holder Arun R Desai vs. Pushpa Hosmani And Ors.¹ Relying on this judgment, learned counsel submits that the Court can as well decide the issue at a later point of time and only to drag on the proceedings, this application is filed by defendant No.2 and the Court had rightly dismissed the application.

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Having heard the learned counsel on either side, perused the material on record. The suit is for declaration and injunction. An application is filed stating that when the property is a non-agricultural property, the Court Fees is paid

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1 LAWS(KAR) 2018 10 111

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NC: 2025:KHC:5501 WP No. 49820 of 2017

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considering it as an agricultural property. If the Court feels that such an issue can be decided along with the other issues that are framed in the suit, the Court ought to have referred the same and the Court ought to have framed an issue in this regard, whether the Court Fees paid by the plaintiff is proper or not. But in this case, the observations in the impugned order that are made by the Court the manner in which the application is dealt with, the impugned order cannot be sustained. It is for the Court to see that the proper Court Fees is paid. When the material on record discloses that what is the nature of property, the Court has to hear the parties, look at the evidence and pass an appropriate order accordingly. In this criptic manner, the Court cannot dismissed the application. In the considered opinion of this Court, the impugned order needs to be set aside. Accordingly, this Court is passing the following:

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ORDER

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(i) The order dated 23.09.2017 passed on I.A.No.20 in O.S.No.276/2006 by the Senior Civil Judge, Anekal

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is set aside and the trial Court shall frame an issue

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NC: 2025:KHC:5501 WP No. 49820 of 2017

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with regard to the Court Fees and shall decide the same along with the other issues.

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(iii) The suit is of the year 1999, the trial court shall expeditiously dispose of the suit itself within a period of one year from the date of receipt of copy of this order.

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(iv) Accordingly, the Writ Petition is disposed of.

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(v) All IAs., in this Writ Petition shall stand closed.

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SD/(LALITHA KANNEGANTI) JUDGE

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KA List No.: 2 Sl No.: 5 CT: BHK

Marianist Trust v. Sri Thimma Reddy

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Marianist Trust v. Sri Thimma Reddy

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