Smt. Sujatha Narayana And Others v. Smt. Leela Ramakrishna And Others

Dr. Bhakthavatsaia, J.:—

The petitioners/legal representatives of Defendant No. 1 in O.S No. 826/1993 on the file of the City Civil Judge at Bangalore City are before this Court challenging the common order dated 2.9.2006 made on the applications filed under Order 26 Rule 9 of Civil Procedure Code and under Sections 11 and 18 of the Karnataka Court Fees and Suits Valuation Act, 1958 (in short ‘CFSV Act, 1958’.)

2. Heard Sri D.R Sundaresh learned counsel for the petitioners.

3. The brief facts of the case leading to filing of the Writ Petition may be stated as under:

A suit was filed in O.S No. 826/1993 for partition and separate possession to the extent of 1/9th share each. After the death of defendant No. 2 (mother of the plaintiffs), the plaintiffs amended the plaint and prayed for declaration that they are the absolute owners of item No. 2 of ‘A’ Schedule Property and also the properties under the registered sale dated 1.7.2002 executed by their mother. After the plaint was amended, the Court below has framed nine additional issues. The 9 additional issue reads as under “Is the Court Fee paid is insufficient”.

4. After the plaintiff filed affidavit by way of evidence, the present petitioners viz., legal representatives of defendant No. 1 filed two applications, one on 17.3.2006 under Order 26 Rule 9 of Civil Procedure Code praying to appoint an advocate as Commissioner to inspect item No. 2 of plaint ‘A’ schedule property and report. Another application was filed on 22.3.2006 under Sections 11 and 18 of the Karnataka Court Fees and Suits Valuations Act to determine proper Court Fees payable on the suit by holding an enquiry. The plaintiffs filed objection to the applications.

5. The Court below after hearing the learned counsel for the parties rejected the applications. This common order is impugned in this writ petition.

6. The petitioner has prayed for quashing the impugned order of the Trial Court and also to direct the Court below to decide Court Fees as per the issue framed even before recording evidence of PW. 1 and subjecting her for cross-examination.

7. Learned Counsel for the petitioners submits that as per Section 11 of the Act, all questions arising on the point of appropriate Court Fees shall be heard and decided before evidence is recorded and if the Court decides that the subject matter of the suit has not been properly valued or that the Court Fees paid is not sufficient, the Court shall follow the procedure laid down in Sub-Section (2) of Section 11 of the Act.

8. Since the pecuniary jurisdiction of the City Civil Court is not questioned, the issue on the point of determination of Court Fees can be tried along with other issues. Further, Section 11 of the CFSV Act, 1958 was made keeping in view the pecuniary jurisdiction of the then Munsiff (now Civil Judge (Jr. Dn.) and Civil Judge (now Civil Judge Sr. Dn.) But, after the City Civil Court Act, 1979 came into force, Section 11 of the CFSV Act has not been amended. Therefore, there is no bar for the Court below to try the issue along with other issues. The burden is on the plaintiffs to establish that they have properly valued the suit and paid proper Court Fee. Under such circumstances, the petitioners filing an application for appointment of Commissioner and another application to determine the Court Fee payable before trying other issues is without any good ground. There is no illegality or infirmity in the impugned common order.

In the result, the Writ Petition fails and the same is hereby dismissed.