Smt. B Kusuma @ Kalamma Vs a.Kumara

SMT. B. KUSUMA @ KALAMMA D/O LATE AREKERE BASAPPA W/O B. SHANKAR AGED ABOUT 58 YEARS RESIDING AT NO.229, 45^TH CROSS, 3^RD MAIN ROAD, 8^TH BLOCK, JAYANAGAR, BANGALORE SOUTH, BSK II STAGE, BANGALORE 560 041.

¶10

…APPELLANT

¶11

(BY SRI. V.B. RAVISHANKAR, ADVOCATE)

¶12

Digitally signed by PAVITHRA N Location: High Court of Karnataka

¶13

AND:

¶14

A. KUMARA S/O LATE AREKERE BASAPPA AGED ABOUT 48 YEARS RESIDING AT VEERANNANA BENAVALLI VEERANNANA BENAVALLI POST HARANAHALLI HOBLI, SHIVAMOGGA TALUK 573 122.

¶15

A. MAHESHA S/O LATE AREKERE BASAPPA AGED ABOUT 46 YEARS RESIDING AT VEERANNANA BENAVALLI VEERANNANA BENAVALLI POST HARANAHALLI HOBLI, SHIVAMOGGA TALUK 573122

¶16

2 -

¶17

NC: 2026:KHC:10688-DB RFA No. 1730 of 2020

¶18

HC-KAR

¶19

SMT. VEERAMMA D/O LATE AREKERE BASAPPA W/O C. R. JAYAPRAKASH AGED ABOUT 66 YEARS RESIDING AT CHINMANE MANDAGHATTA POST, KUMSI HOBLI, SHIVAMOGGA TALUK 577 423.

¶20

SMT. PUTTAMMA D/O LATE AREKERE BASAPPA W/O LATE B. MANJAPPA AGED ABOUT 62 YEARS RESIDING AT GOPISHETTY KOPPA GOPAL POST, SHIVAMOGGA TALUK 577 205.

¶21

SMT. KOMALA D/O LATE AREKERE BASAPPA W/O LATE H.B. RUDRAPPA AGED ABOUT 55 YEARS RESIDING AT HOSAHALLI SASIVEHALLI HOBLI, HONNALI TALUK DAVANAGERE TALUK 577 217.

¶22

…RESPONDENTS

¶23

(BY SRI. BASANAGOUDA S.S., ADV. FOR SRI. P.H.VIRUPAKSHAIAH, ADV. FOR R1 TO R3 & R5)

¶24

THIS RFA IS FILED UNDER SECTION 96 OF CPC, AGAINST THE ORDER DATED 15.09.2020 PASSED ON PRELIMINARY ISSUE IN O.S.NO.140/2019 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, CJM, SHIVAMOGGA, AND ALLOW THE APPEAL AND GRANT SUCH OTHER RELIEF/S AS THIS COURT DEEMS IT FIT IN THE FACTS AND CIRCUMSTANCES OF THIS CASE.

¶25

3 -

¶26

NC: 2026:KHC:10688-DB RFA No. 1730 of 2020

¶27

HC-KAR

¶28

THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

¶29

CORAM: HON'BLE MRS. JUSTICE ANU SIVARAMAN and HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

¶30

ORAL JUDGMENT

¶31

(PER: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL)

¶32

This appeal is filed by the plaintiff challenging the order dated 15.09.2020, passed in O.S.No.140/2019, by the learned I Additional Senior Civil Judge and CJM at Shivamogga (hereinafter referred to as the 'Trial Court' for short).

¶33

Sri V.B. Ravishanker, learned counsel appearing for

¶34

the appellant/plaintiff submits that the appellant has filed a suit for partition and separate possession. In the said suit, the trial Court framed the preliminary issue with regard to the Court fee and after a detailed enquiry, directed the plaintiff to value the suit prayer (a) under Section 38(1) of the Karnataka Court Fees and Suit Valuation Act ('KCF & SV Act' for short) and for prayer (b) under Section 35(1) of KCF & SV Act by taking into consideration the market value of the suit property and ordered to pay the Court fee under the said provision, within seven

¶35

4 -

¶36

NC: 2026:KHC:10688-DB RFA No. 1730 of 2020

¶37

HC-KAR

¶38

days from the date of the order, failing which, the plaint was ordered to be rejected under Order 7 Rule 11(b) and (c) of CPC.

¶39

It is submitted that the order is passed during the second wave of Covid-19 pandemic and the appellant/plaintiff was having financial constraints. Hence, she could not make the payment within seven days, which resulted in the rejection of the plaint. It is submitted that the suit is required to be adjudicated on merits and she may be provided with an opportunity to make good the Court fee within a reasonable time, so that she would pay the Court fee as ordered by the trial Court under the impugned judgment. Hence, he seeks to allow the appeal.

¶40

Per contra, learned counsel appearing for the respondents opposing the appeal submits that the order of the trial Court is passed on 15.09.2020 and now after a lapse of five years, cannot seek for an opportunity to pay the Court fees, hence, there cannot be any remand to the trial Court. It is submitted that the filing of the present appeal is nothing but an abuse of process of law that will further drag the

¶41

5 - NC: 2026:KHC:10688-DB RFA No. 1730 of 2020

¶42

HC-KAR

¶43

proceeding. The appellant has no right over the Suit Schedule Property. Hence, he seeks to dismiss the appeal.

¶44

We have heard the arguments on both sides and

¶45

perused the material available on record. We have given our anxious consideration to the facts of the case and to the arguments advanced on both sides.

¶46

It is to be noticed that the appellant has filed a suit

¶47

in O.S. No.140/2019 seeking the following reliefs;

¶48

"a) For declaration that registered relinquishment deed dated 14-3-2016 in S.R. No. 12678/15-16 is null and void and not binding of the plaintiff's 1/6th share,

¶49

b) For declaration that plaintiff has got 1/6th over plaint schedule 'A' and 'B' joint family properties and for partition of the same by metes and bounds and put her in possession of allotted share by separation.

¶50

c) For accounts and share of profits for the income derived from the date of suit upto date of delivery of possession by way of mesne profits by holding enquiry if necessary under Order 20 Rule 12 of CPC.

¶51

d) For court costs expenses and other main or incidental appropriate reliefs as this Hon'ble court deems fit to grant under the circumstances of the case."

¶52

6 -

¶53

NC: 2026:KHC:10688-DB RFA No. 1730 of 2020

¶54

HC-KAR

¶55

In the said suit, the trial Court framed preliminary

¶56

issue on the Court fee and conducted a detailed enquiry. The order under challenge clearly indicates that the trial Court has provided sufficient opportunity to both the parties and come to conclusion that the payment of Court fee by the plaintiff is insufficient and ordered to pay the Court fee as ordered in the order dated 15.09.2020, within seven days. It is not in dispute that the Court fee is not paid within the said period. Hence, the present appeal is filed.

¶57

We have taken note of the fact that the appellant has specifically raised the grounds in the appeal that the said order is passed during Covid-19 pandemic and the appellant has certain financial difficulties, hence, he could not make the payment within 7 days as ordered by the trial Court. The appellant/plaintiff is claiming as one of the family members and claiming right over the Suit Property that the property is the Joint Family Property.

¶58

Considering the said aspects and taking note of the

¶59

fact that the trial Court is required to adjudicate the suit on its merits after a full fledged trial as the suit is one for partition

¶60

7 -

¶61

NC: 2026:KHC:10688-DB RFA No. 1730 of 2020

¶62

HC-KAR

¶63

and separate possession, and now the appellant has made a categorical statement that within a reasonable time, she would pay the Court fee, recording the said submission, we proceed to pass the following:-

¶64

ORDER

¶65

(i) Appeal is allowed .

¶66

(ii) The order dated 15.09.2020, passed in O.S. No.140/2019, by the I Additional Senior Civil Judge and CJM at Shivamogga, is set aside.

¶67

(iii) The appellant shall pay the Court fee as ordered by the trial Court, within a period of four weeks from the date of receipt of copy of this order. On payment of Court fees, the suit is restored.

¶68