9) ILR 2002 KAR 2347, Manicklal Verma and Anr v. Smt. Jamunadevi and Ors
(Ref) 22Sri. Praveen Kumar Raikote
, Advocates for Appellants.
JUDGMENT
Kumar, J.
This is a plaintiffs' appeal against the order of the learned single Judge who has directed the trial Court to try and decide issue No. 3 relating to the court fee as a preliminary issue.
2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
3. The plaintiffs filed O.S No. 213/2000 on the file of the Additional Civil Judge (Sr. Division), Raichur, for the relief of partition and separate possession of their 1/6th share in the suit schedule property. They also sought for a decree for refund of 1/6 share in the compensation received by the defendant. The defendant filed his written statement contesting the claim. He contended that the compensation received by him in respect of the land acquired by the State Government was his exclusive property. He specifically pleaded that the valuation of the suit and payment of fixed Court fee under Section 35(2) is wrong, and insufficient. As per the claim, each plaintiff has to pay the required Court Fee under Section 21 of the Karnataka Court Fees and Suit Valuation Act. On the basis of the aforesaid pleadings, the Court below framed as many as 5 issues. The 3rd issue framed by the Court is as under:—
“Whether the defendant proves that the court fee paid is insufficient”
4. Thereafter, the defendant filed an application under Section 11 of the Karnataka Court Fees and Suits Valuation Act, 1958 (hereinafter for short referred to as ‘the Act’) to try and decide issue No. 3 as a preliminary issue. The said application was rejected by the trial Court on the ground that the issue regarding court fee is a mixed question of law and fact and it cannot be treated and tried as a preliminary issue. Aggrieved by the said order the defendant preferred a Writ Petition before this Court. The learned single Judge after referring to Sub-section (2) of Section 11 of the Act, held that the aforesaid provision mandates all questions relating to proper valuation of the subject matter of the suit and payment of the court fee arising on the basis of the plaint and written statement shall be heard and decided before evidence is recorded affecting such defendant, on merits of the claim. Therefore, he held that the issue relating to Court Fee should be tried as a preliminary issue. Aggrieved by the said order, the plaintiffs are in appeal.
5. The learned counsel for the plaintiffs assailing the impugned order of the learned single Judge contended that, in view of the judgment of this Court in Smt. Sujatha Narayana and Others v. Smt. Leela Ramakrishna and Others . AIR 2006 KAR 4463 the issue regarding court fee has to be tried along with other issues and not as a preliminary issue and, therefore, he seeks for setting aside the said order.
6. In Smt. Sujatha Narayana's case, the learned Single Judge of this Court has held as under:—
“Since the pecuniary jurisdiction of the City Civil Court is not questioned, the issue of 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.”
7. It is true that the City Civil Court at Bangalore has unlimited jurisdiction whereas the Civil Courts situated outside the Bangalore City are classified into Civil Judge, Junior Division and Civil Judge, Senior Division and pecuniary jurisdiction of those Courts have been clearly stipulated in the Karnataka Civil Courts Act, 1964. The pecuniary jurisdiction defined in the said Act is nothing to do with the power of the Court to decide the issue relating to payment of court fee under Section 11 of the Act. If a Civil Judge, Junior Division, holds that the suit is not properly valued and the valuation of the suit is more than its pecuniary jurisdiction in such circumstances it has to return the plaint. But, it has nothing to do with Section 11 of the Court Fees Act.
8. The framing of an issue in a suit is a procedural law which is contained in the Code of Civil Procedure 1908, for short hereinafter referred to as CPC. Order XIV of the CPC provides for settlement of issues and determination of suit on issues of law or on issues agreed upon. Issues arise in a suit when a material proposition of fact or law is affirmed by the one party and denied by the other. Issues are of two kinds: (a) issues of fact and (b) issues of law. In a suit, issues both of law and fact may arise for consideration. There may be issues which are a mixed question of fact and law.
9. The Supreme Court in the case of Major S.S Khanna v. Brig. F.J Dillon . AIR 1964 SC 497 interpreting Order 14 Rule 2 of the CPC prior to amendment in 1976 held as under:—
“Under Order 14 Rule 2 where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exericsed only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the Court: not to do so, especially when the decision on issues even of law depends upon the decision of issues of fact, would result in a lop-sided trial of the suit.”
10. Rule (2) has been substituted by CPC Amendment Act 104/1976 which came into effect from 1.2.1977 It reads as under:
2. Court to pronounce judgment on all issues.—
(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to—
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force,
and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.”
The substituted rule provides that, a Court must give judgment on all issues but where any issue of law relates to the jurisdiction of the Court or bar to suit, the Court may postpone settlement of other issues until the aforesaid issue has been determined as a preliminary issue and the Court may deal with the suit in accordance with the decision on that preliminary issue. The power of the Court to decide the preliminary issue and postpone settlement of other issues is discretionary and not mandatory. After 1976 Amendment, no other issues other than the issues of law relating to (i) jurisdiction of the Court, (ii) bar to the suit created by law, can be decided as preliminary issue. Those issues must be of pure question of law as distinguished from mixed questions of law and fact. While under the old Rule (2) if on issues of law only, a suit might be disposed of, the court was bound to try those issues first. Under the new Rule (2) the court is bound to try those issues also along with the other issues in the suit, subject to specific exception relating to jurisdiction and bar of suit, in which two cases only, the court may try those issues first as a preliminary issues. The CPC gives no jurisdiction to try an issue which is a mixed question of law and fact as preliminary issues. The object of Order XIV Rule 2 is to avoid piece meal trial and consequential protracted litigation. It would stop unnecessary remand and thus a source of protraction of litigation. It would avoid waste of time and unnecessary expenses to the parties
11. Therefore, the rule is, the Court shall pronounce judgment on all issues. The only exception is where issues relates to “jurisdiction of the Court” or “a bar to the suit created by any law for the time being in force”, which are purely issues of law, and the case or any part thereof may be disposed of in answering that issue, the Court may try that issue first i.e, as a preliminary issue. The reason is obvious. If the Court has no jurisdiction to try the suit, any judgment rendered by such court is void ab initio, and a nullity. Such an objection could be raised even in the execution side and such a decree cannot be executed. Therefore, in order to avoid such contingency, and save the precious time of the Court and public money, the said provision is introduced. It is based on good public policy. This provision has nothing to do With the valuation of the subject matter of the suit, or the Court fee payable on such subject matter. The law relating to Court fees and valuation of suits and the determination of the fee payable are contained in the Karnataka Court Fees and Suits Valuation Act, 1958. Therefore, the issue relating to valuation of suits and Court fee payable on suits are to be determined under the said Act.
12. The Karnataka Court Fees and Suits Valuation Act, 1958 was enacted to amend and consolidate the laws relating to court fees and valuation of suits in the State of Karnataka. Chapter III of the Act deals with determination of fee payable. Section 10 of the Act mandates that the plaintiff shall file with the plaint, a statement in the prescribed form, of particulars of the subject matter of the suit and his valuation thereof unless such particulars and the valuation are contained in the plaint. Order VII Rule 1(i) of the CPC provides that the plaint shall contain a statement of the value of the subject matter of the suit for the purpose of jurisdiction and of Court fees, so far as the case admits. Section 11 of the Act, specifically deals with, decision as to proper fee in Courts. It 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 subsection not 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-subject Section (2).
Explanation.— Nothing in this 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 it.
(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.
Explanation.— In this section, the expression “merits of the claim” refers to matters which arise for determination in the suit, not being matters relating to the frame of the suit, misjoinder of parties and causes of action, the jurisdiction of the court to entertain or try the suit or the fee payable, but inclusive of matters arising on pleas of res judicata, limitation and the like.”
“Underlining is by us”
13. A perusal of the said provision makes it clear that an obligation is cast on the Court even before ordering the plaint to be registered, to decide on the materials and allegations contained in the plaint, what is the correct fee payable on the plaint. The said decision however is subject to review, further review, corrections in the manner specified in the succeeding sub-sections. Sub-section (2) of Section 11 provides, a 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, plead that the subject matter of the suit has not been properly valued or that the fee paid is not sufficient. If such a plea is taken, naturally the Court has to frame an issue. Sub-section (2) further provides all questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. In other words, it mandates, if an issue regarding court fee is raised, the said issue shall be decided before recording evidence on other issues. Therefore, the mandate of law is very clear. No discretion is left to the Court for postponing the decision regarding issue of court fee once such a plea is taken in the written statement or before the evidence is recorded.
14. The issue regarding court fee normally would be a mixed question of law and fact. Evidence is to be recorded. Merely because evidence is to be recorded on the said issue that is not a ground to direct trial on that issue along with other issues on which also evidence is necessary. If the issue regarding court fee is held against the plaintiff and the plaintiff does not pay the court fee prescribed by the Court in the order, the law mandates that the Court shall reject the plaint, so that the precious time of recording evidence on other issues is saved and the defendant is not harassed in the form of trial. Therefore, this Section is based on good public policy and it has nothing to do with the Bangalore City Civil Court Act or its jurisdiction to try the suits before it. Incidentally, the issue regarding court fee may also involve question of pecuniary jurisdiction. In answering the said issue, if the Court holds that the subject matter of the suit is more than the value over which the said Court has jurisdiction, it has to return the plaint for presentation to the proper Court.
15. Order XIV Rule 2 of the CPC is the general provision of civil law relating to trial of suits and issues including any issues as preliminary issue. The Karnataka Court Fees and Suits Valuation Act, is a special law. It has received the assent of the President of India. It prevails over the general law. It is well settled when a special mode has been prescribed by a special law to do a particular job or to exercise the power in relation to subject thereunder, then special law has to prevail over the general law and the mode so prescribed by special law would have to be followed in respect of matters covered therein. Section 11 of the Act, specifically deals with decision as to proper fee in Courts. It 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. Therefore, in so far as the issues relating to valuation and Court fee are concerned, Order XIV Rule 2 of the CPC has to yield to Section 11 of the Act. Therefore, all questions arising with reference to valuation and Court fee payable shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. This aspect has been affirmed and re-affirmed in sub-Sections (2), (3) and (5) of Section 11. Therefore, the intention of the legislature is manifest. The words “shall be heard” repeatedly used in the aforesaid provisions, makes it clear that this provision is mandatory. In order to decide the said issue whether any evidence is to be recorded or not is immaterial. It is also immaterial to find out whether the issue regarding valuation and Court fee is a pure question of law or a mixed question of law and fact or a pure question of fact. When once a plea is taken that the suit has not been properly valued or that the fee paid is not sufficient, issue arising on such pleas shall be heard and decided before evidence is recorded on merits of the claim.
16. This view of ours is supported by a plethora of cases decided by the Apex Court as well as this Court. The Supreme Court in the case of Sri Rathnavarmaraja v. Vimla Smt. . AIR 1961 SC 1299 dealing with the Court Fees Act held that, the Court Fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. Whether the proper court fee is paid on a plaint is primarily question between the plaintiff and the State. The Section only enables the defendant to raise a contention as to the proper court fee payable on a plaint and to assist the Court in arriving at a just decision on that question. That Act provides that for the purpose of deciding whether the subject matter of the suit or other proceeding has been properly valued or whether the fee paid is sufficient, the Court may hold such enquiry as it considers proper and issue a commission to any other person directing him to make such local or other investigation as may be necessary and report thereon. The anxiety of the Legislature to collect court fee due from the litigant is manifest from the detailed provisions made in Chapter III of the Act.
17. In the case of Umarabba v. Pathunni & Ors. . 1984 KAR L.J 97 a learned single Judge of this Court interpreting Section 11(2) of the Act held that, a reading of the above provision shows that, on the face of it, it was incumbent on the trial Court to decide this issue before recording evidence affecting the petitioner on the merits of his claim.
18. In the case of Smt. Sakinabi (Deceased) By LRs v. Zeenathunnisa (Deceased) By L.Rs and Another . 1999 2 KAR L.J 471 a learned single Judge of this Court has held that, a reading of the Section per se reveals that it is the duty of the Court when there is a dispute about the market value of the subject matter of suit and its valuation and proper court fee paid, to determine that question and not to leave the question hanging.
19. A learned single Judge of this Court in the case of The The Karnataka Theosophical Federation (R) v. Balakrishna Ashrama* . AIR 1999 KAR 2930 dealing with the Act held that, a perusal of sub-Sections (2) to (6) of Section 11 per se 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 affecting such defendant, on the merits of the claim. Section 11 of the 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.
20. Again another learned single Judge of this Court in the case of Thimmaiah v. Sreenivasa* . AIR 1999 KAR 3660 held as under:—
“Therefore, when the special statute has made it incumbent on the trial court to decide the issue of court fee before recording evidence on merits of the respective claim of the parties, the trial Court has to follow the mandate of law. It is not permissible to give a go-by to this mandate in the special statute.”
21. A learned single Judge of this Court in the case of A. Madhava Hegde v. Rajendra S. Revankar* . ILR 2000 KAR 1267 held as under:—
“A careful reading of sub-Section 2 of Section 11 of the Act shows that all questions arising regarding the proper valuation of the suit shall be heard and decided before the evidence is recorded. Therefore, it is mandatory that whenever question relating to valuation of the suit is concerned, the same shall be tried and decided in the first instance before any evidence is recorded on merits.
Therefore, when the special statute has made it incumbent on the Trial Court to decide the issue on Court fee before recording evidence on merits of the respective claim of the parties, the Trial Court has to follow the mandate of law and it is not permissible to give a go by to this mandatory provision enacted in the special statute like Karnataka Court Fees and Suits Valuation Act.
The provisions of Order 14 Rule 2 are only procedural and the same cannot outweigh the mandatory provisions of the Karnataka Court Fees and Suits Valuation Act.”
22. Yet another learned single Judge of this Court in Manicklal Verma and Another v. Smt. Jamunadevi and Others . AIR 2002 KAR 2347 dealing with Section 11(2) of the Act held as under:—
“10. Another aspect of law which is of fundamental importance in a case like the present one is that the issue pertaining to valuation of the subject matter of the suit, which in turn has direct relevance to the amount of the Court fee payable and the pecuniary jurisdiction of the Court, always gives rise to a mixed question of fact and law and therefore necessitates an enquiry as contemplated under Section 11(2) of the Act. Therefore, such an issue cannot by its very nature be decided as a preliminary issue within the meaning of Order XIV Rule 2(2) of the CPC which confers discretion in the Court to decide the issue of law only as a preliminary issue and that too, if it touches upon the jurisdiction of the Court or institution of such a suit is barred by any law.
11. On the other hand, Section 11(2) of the Act, like Order XIV Rule 2(2) of the CPC, does not confer mere discretion on the Court but it mandates that the issue of valuation of the subject matter of the suit both for the purposes of Court fee and jurisdiction has to be decided before a evidence is recorded. It is also to be borne in mind that once the issue of valuation is decided by the Trial Court in the manner provided under the Act, the remedy available to any aggrieved party against such an order will be only to rise grievance on this score is a Court of appeal as provided under Section 11(4)(a) of the Act. As a necessary consequence any remedy by way of preferring revision under Section 115 CPC cannot be said to be maintainable.
12. Before parting it is appropriate to notice that the procedure provided under the Act is a special procedure for determining the issue relating to valuation of the subject matter having bearing on Court fee payable and jurisdiction of the Court and it has an overriding effect over the procedure contained in the CPC on this specific aspect: It is so because, admittedly, the subject of civil procedure (entry 13) is contained in the concurrent list of the Seventh Schedule of the Constitution of India and present Act has been brought into force after obtaining assent of the President of India on 23-5-1998. Therefore, Article 254(2) of the Constitution of India comes into play which declares that.
Article 254. Inconsistency between laws made by Parliament and laws made by the Legislature of States.—
(1)xxxxxxxxx
(2)Where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to the matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the president and has received his assent, prevail in that state: Provided…………….
23. Therefore, this Court has consistently held that the issue regarding valuation of the suit, and payment of Court fee shall be tried as a preliminary issue.
24. In the light of the aforesaid discussions, the statutory provisions and the settled legal position, the issue regarding valuation of the suit and payment of Court Fee shall be tried as a preliminary issue, if necessary, after recording of evidence and decide the said preliminary issue, before evidence is recorded affecting such defendant, on the merits of the claim. Accordingly, the law laid down in the case of Smt. Sujatha Narayana and Others v. Smt. Leela Ramakrishna and Others(Supra) do not lay down the correct law and hence it is overruled. The impugned order is in accordance with law and therefore, do not call for interference. Hence, we pass the following order:—
a) Writ Appeal is dismissed.
b) No costs.