Smt Gowramma Vs Sri K Prakash Shetty

(BY SRI. JOSEPH ANTHONY, ADVOCATE FOR R13 R1, R5 TO R12 ARE SERVED AND UNREPRESENTED VIDE ORDER DATED 06.10.2023, NOTICE TO R3 AND R4 IS HELD SUFFICIENT VIDE ORDER DATED 25.07.2025, NOTICE TO R2 IS HELD SUFFICIENT)

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THIS WP IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO-CALL FOR THE RECORD, ALLOW THE WRIT PETITION BY QUASHING THE SUOMOTO ORDER DATED 11.11.2019 AS PER ANNEXURE-D PASSED BY THE HONBLE VII ADDL,. CITY CIVIL AND SESSIONS JUDGE, BENAGLURU CCH-19 IN O.S.NO.9863/2014 TO DEPOSIT THE COURT FEE AND ETC.

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NC: 2026:KHC:31765 WP No. 2561 of 2020

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HC-KAR

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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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ORAL ORDER

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This writ petition is filed challenging the order dated 11.11.2019 passed in O.S.No.9863/2014 by the VII Additional City Civil and Sessions Judge, Bengaluru (hereinafter referred to as the 'Trial Court' for short).

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Heard Sri. M. Venkatappa, learned counsel appearing for the petitioners and Sri. Joseph Anthony, learned counsel appearing for respondent No.13.

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The petitioners have filed a suit for partition, separate possession, declaration and other reliefs. In the said suit, the defendants filed a detailed written statement. Respondent No.13 claims to be the donee from her husband, who has purchased the suit schedule properties. In the said suit, the Trial Court, under the impugned order, suo motu came to the conclusion that the

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HC-KAR

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plaintiffs had not made any averment in the plaint with regard to the joint possession of the suit schedule properties and consequently directed the plaintiffs to make good the Court fee under Sections 35(1) and 24(a) of the Karnataka Court Fees and Suits Valuation Act, 1958.

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It is to be noticed that, though the plaintiffs

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have not made any specific averment in the plaint that they are in joint possession of the suit schedule properties, however, there are averments in paragraph Nos.2 to 4 and 8 of the plaint with regard to the possession and such averments are required to be gone into by the Trial Court while deciding the suit on merits.

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Be that as it may, the issue relating to court fee is normally required to be gone into by the Trial Court along with the other issues, as held by the Full Bench of this Court in the case of VENKATESH R. DESAI VS. SMT.

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PUSHPA HOSMANI AND OTHERS¹ . The Full Bench of this Court, at paragraph No.35, held as under:

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1 ILR 2018 Karnataka 5095

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HC-KAR

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"35. Accordingly, and in view of the above, we are clearly of the view that by virtue of Section 11 of the Karnataka Court Fees and Suits Valuation Act, 1958 read with Order XIV Rule of the Code of Civil Procedure, 1908, when an issue of valuation and/or Court fees is raised in a civil suit on the objection of the defendant, the same is not invariably required to be tried as a preliminary issue and before taking evidence on other issues; but could be tried as a preliminary issue if it relates to the jurisdiction and the Trial Court is of the view that the suit or any part thereof could be disposed of on its determination. The reference stands answered accordingly."

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In view of the enunciation of law laid down by

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the Full Bench, and keeping in mind the pleadings in the

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plaint as well as the rival contentions of the parties, I am of the view that the Trial Court is required to frame an issue on the court fee and adjudicate the said issue along with the other issues by permitting the parties to adduce

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the evidence.

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7. Learned counsel for the petitioners submits that

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the Trial Court has further erred in ordering the payment of court fee by considering the present market value. However, it would have been from the date of presentation of the plaint. In my considered view, the said issue also

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NC: 2026:KHC:31765 WP No. 2561 of 2020

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HC-KAR

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requires to be gone into while adjudicating the issue on

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court fee.

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For the aforementioned reasons, I proceed to

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pass the following:

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ORDER

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i) The writ petition is allowed .

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ii) The impugned order dated 11.11.2019 passed in O.S.No.9863/2014 by the VII Additional City Civil and Sessions Judge, Bengaluru is hereby set aside.

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iii) The Trial Court shall frame the issue on Court Fee and record its finding on the said issue along with other issues while deciding the suit.

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No order as to costs.

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Sd/- (VIJAYKUMAR A. PATIL) JUDGE

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SHS List No.: 1 Sl No.: 20

Smt Gowramma v. Sri K Prakash Shetty

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Smt Gowramma v. Sri K Prakash Shetty

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