The Karnataka Theosophical Federation (R) v. Balakrishna Ashrama

Hari Nath Tilhari, J.:—

Petition arises from the Judgment and Order dated 18.12.1997, whereby the Court was directed the plaintiff to pay the Court fee on Rs. 20 lakhs, the market value of the suit property and to file separate valuation slip within a month.

2. The Court below after considering the matter, opined that the relief claimed in the plaint to the effect that decree for declaration be granted in favour of the plaintiff, declaring plaintiff's title to the suit property as well as for the relief of recovery of possession of the property from the defendant squarely falls under Section 24-A of the Karnataka Court Fees and Suits Valuation Act and plaintiff has to pay the Court-fee, according to the market value of the property. It further found that the value of the suit property is about 20 lakhs.

3. The petitioner's Counsel Sri K.M Chandra Prasad submitted that the value of the property is a question of fact to be determined on evidence and, so the question of payment of Court-fees as well as the valuation of suit question had not to be decided until the recording of evidence on all issues and till then additional Court-fee could not be demanded. He submitted that valuation of the property being a mined question of law and fact, and that in view of Order 14 Rule 2 of the C.P.C, this issue ought to have been decided along with other issues on the merits after recording of entire evidence and not by way of piece meal trial and, as such the Court below acted illegally in deciding the issue regarding payment of Court-fee. He further submitted that the framing of issue is also erroneous, as the issue has been to the effect; Whether defendant proves that the Court-fee paid on the plaint is incorrect, as contended in para-19 of the written statement?

Learned Counsel for the petitioner contended that the issue ought to have been to the effect; Whether the suit has been properly valued and court-fee paid is correct.

4. The contentions of the learned Counsel for the petitioner have been hotly contested by Sri J.G Chandra Mohan, learned Counsel for the respondent contending that present revision is misconceived and is not maintainable. He further contended that, in view of Section 11 of the Karnataka Court fees Act, the Court below was required to decide the issue or question of valuation of the suit and Court-fee, even before the evidence on merits is recorded. He invited my attention to Section 11 of the Court-Fees Act. Learned Counsel further submitted that decision of the question as to the valuation of the suit on the basis of the material placed here does not effect the jurisdiction of the Trial Court and so, even if the finding is erroneous, it does not amount to finding of jurisdictional of fact that the Principal Civil Judge could entertain suit of that valuation even.

I have applied my mind to the contentions raised by the learned Counsel for the respective parties. In my opinion, there is much force is the contention of the learned Counsel for the respondent that the present revision petition is misconceived.

5. Section 11 of the Court Fees Act pertains to the decision as to proper fee in Courts which reads as under:

“11. Decision as to proper fee in Courts:(1) In every suit instituted in any Court, the Court shall, before ordering the plaint to be registered, decide on the materials and allegations contained in the plaint and on the materials contained in the statement if any, filed under Section 10, the proper fee payable thereon, the decision being however subject to review further review, and correction in the manner specified in the succeeding sub-sections.”

(2) Any defendant may, by his written statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim but, subject to the next succeeding sub-section, and later, plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. If the Court decides that the subject matter of the suit has not been properly valued or that the fee paid is not sufficient, the Court shall fix a date before which the plaint shall be amended in accordance with the Court's decision and the deficit fee shall be paid. If the plaint be not amended or if the deficit fee be not paid within the time allowed, the plaint shall be rejected and the Court shall pass such order as it deems just regarding costs of the suit.

(3) A defendant added after issues have been framed on the merits of the claim may in the written statement filed by him, plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim and if the Court finds that the subject matter of the suit has not been properly valued or that the fee paid is not sufficient, the Court shall follow the procedure laid down in sub-section (2).

Explanation:— Nothing in the sub-section shall apply to a defendant added as a successor or a representative in interest of a defendant who was on record before issues were framed on the merits of the claim and who had an opportunity to file a written statement pleading that the subject-matter of the suit was not properly valued or that the fee paid was not sufficient.

(4)(a) Whenever a case comes up before a Court of appeal, it shall be lawful for the Court, either on its own motion or on the application of any of the parties, to consider the correctness of any order passed by the lower Court affecting the fee payable on the plaint or in any other proceeding in the lower Court and determine the proper fee payable thereon.

Explanation:— A case shall be deemed to come before a Court of appeal even if the appeal relates only to a part of the subject-matter of the suit.

(b) If the Court of appeal decides that the fee paid in the lower Court is not sufficient, the Court shall require the party liable to pay the deficit fee within such time as may be fixed by its.

(c) If the deficit fee is not paid within the time fixed and the default is in respect of a relief which has been dismissed by the lower Court and which the appellant seeks in appeal, the appeal shall be dismissed, but if the default is in respect of a relief which has been decreed by the lower Court, the deficit fee shall be recoverable as if it were an arrear of land revenue.

(d) If the fee paid in the lower Court is in excess, the Court shall direct the refund of the excess to the party who is entitled to it.

(5) All questions as to value for the purpose of determining the jurisdiction of courts arising on the written statement of a defendant, shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim.”

A perusal of scheme of sub-sections 2 to 6 of Section 11 perse reveals and mandates that all questions relating to proper valuation of the subject-matter of the suit and payment of proper court-fee arising on the basis of the pleas and written statement shall be heard and decided before evidence is recorded effecting such defence on the merits of the claim. The section further directs that, if the Court decides that the suit has been properly valued and Court-fees, if paid is not sufficient, the Court shall fix a date directing the plaintiff to amend the plaint in accordance with the Court's order and decision of and to pay the deficit Court-fee and if the plaint is not amended and deficit Court-fee is not paid within the time allowed, the plaint should be rejected and the Court shall pass the order, as it just deems regarding costs of the suit. Further, Section 11 of Karnataka Court Fees and Suits Valuation Act provides remedy against order of the Court in such matters as per sub-section 4(a) and (b) thereof provides a complete course of action at proper stage provided therein and is complete code by itself.

6. In view of these provisions contained in Karnataka Court-Fees and Suits Valuation Act, no revision could be filed by the revision petitioner, merely for alleged violation of provisions of Order 14 Rule 2 of the Code of Civil Procedure. That Order 14 Rule 2 or is the general provision of Civil law relating to trial of suits and issues including any of issues as preliminary issue, but as regards Karnataka Suit Valuation and Court-fees Act it being a special law, it will prevail over the general law. It is well settled when a special mode has been prescribed by special law to do a particular job or to exercise the power in relations to subject thereunder, then special law has to prevail over the general law and the mode so prescribed by special law would have been followed in regard to matters covered therein. Sub-section 2 being a special law and gives a special direction to the Court to decide the issue relating to valuation and Court-fee before recording of evidence on merits of the case against defendant and the same being a mandate of law, the Court below did not commit any jurisdictional error and illegality in deciding this issue. Further the additional issue No. 1 was not properly framed. The issue should have been; Whether the suit has been properly valued and Court-fee paid is sufficient. No doubt plaintiff had also to prove that he had properly valued the suit and paid the Court-fee and it was open to the defendant to show that the value of the property has been much more than what has been alleged. Anyhow the Court below has considered the evidence on record and the necessary materials and recorded the finding which is a pure finding on fact not effecting the jurisdiction, even if some error was made by the Court in the appreciation of material in arriving at the finding as alleged, the finding cannot be interfered with under Section 115 CPC merely on the ground of improper appreciation of material.

7. The said error cannot be said to be a jurisdictional error. Every error cannot be termed to be jurisdictional error, only those errors which effect the jurisdiction of the Court to entertain, or to decide the suit or the like, may be said to be jurisdictional error, or if the Court acts illegally and in breach of the provisions of law, then it may be said that the act of jurisdictional error, but in every such case, it has to be further shown or established that the decision of the Court below is such that if it is allowed to stand it may result in injustice or it may cause an irrepairable loss or injury to the revision petitioner. Nothing like that has been shown in this case. The law requires that if a person wants to have trial of the suit and the claim against the defendant or wants the defendant to face the trial, he has to pay the necessary Court fees as per Section 11 of the Court-Fees Act.

8. As per Section 11 of the Court-fees Act, the exception may be only with reference to the person, who may be found to be indigent person or pauper. It is not the case that the plaintiff was an indigent person. If the order, according to revision petitioner suffers from any error, then it is always open to them to raise that plea when he files the appeal from the decree against dismissal of the suit when defendant files the appeal in view of Section 11(4)(a) of the Court-fees Act, which has been quoted above, keeping this plea open; Whether the Court below has rightly decided the issue of valuation of Court-fee or not without recording any finding, in my opinion the present revision petition being misconceived, has to be dismissed. Thus considered revision petition being misconceived, the revision is hereby dismissed with cost.

The appellant is granted four months to comply and to make the payment of the deficit Court-fee and to get the proper value made as the order of the Court below done.