Muniswamy and Others vs J. Vijay Kumar

A.V. Chandrashekara, J.—Heard the learned counsel for the parties. Perused the impugned order dated 15.11.2014 passed by the 18th Addl. Civil Judge in O.S. 6920/2003. Petitioner is the defendant No. 1 in the said suit filed for relief of permanent injunction only. Subsequently, the plaint has been got amended for declaration of title, mandatory injunction and possession. On the basis of the pleading of the parties, following issues have been framed:

a) Whether plaintiff proves that he has acquired title to the suit schedule property through registered sale deed dated 27.5.1998?

b) Whether plaintiff proves his possession over the suit schedule property as on the date of suit?

c) Whether the plaintiff proves that the defendant has constructed building in the suit schedule property after filing of the suit?

d) Whether plaintiff is entitled for the relief of mandatory injunction claimed in the suit?

e) Whether defendant proves that the suit is not properly valued and court fee paid is insufficient?

f) Whether defendant proves that the suit is bad for non-joinder of necessary parties?

g) What order of decree the parties are entitled to?

Issue No. 5 relating to the sufficiency or otherwise to the court fee paid is treated as preliminary issue. The learned Judge has passed the order on issue No. 5 on 15.11.2014 holding that the suit is properly valid and court fee is paid.

What is argued by the learned Senior Counsel is that several purchasers of the flats put up in schedule property has been impleaded of late and declaration of title is sought against them and therefore court fee should be paid in terms of Section 24(b) of Karnataka Court Fee and Suits Valuation Act as on the date they were brought on record and relief sought for. Further he contends that since relief of declaration of title was included of late, court fee will have to be paid in terms of Section 24(b) Karnataka Court Fee and Suits Valuation Act as on the date when the relief was sought.

Perused the impugned order. It is seen that no enquiry is held in terms of Section 11(2) of Karnataka Court Fee and Suits Valuation Act. Whenever there is a serious dispute about the quantum of court fee paid, necessarily enquiry should be held in terms of Section 11(2) of Karnataka Court Fee and Suits Valuation Act. Section 11(2) of Karnataka Court Fee and Suits Valuation Act in view of a Division Bench decision of this Court rendered in the case of Veeragouda and Others Vs. Shantakumar @ Shantappagowda, Kumar mandates that all question regarding insufficiency of court fee shall be heard before the evidence is recorded on the merits of the claim. It is further made clear that if the court decides that the subject matter of the suit is not 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. Section 11(3) of the said Act also mandates that a defendant who is 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.

The learned counsel for the respondent-plaintiff has relied upon the decision rendered by the three Hon''ble Judge of Apex Court rendered in the case of Sri Ratnavaramaraja Vs. Smt. Vimla, to contend that whether proper court fee is paid on a plaint is primarily a question between the plaintiff and the state. The jurisdiction in revision exercised by the High Court under Section 115 of the CPC is strictly conditioned by clause (1) to (c) thereof. This decision has been rendered while discussing the provisions of Section 12(2) of Madras Court-Fees and Suits Valuation Act which 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. It is held that there is no provision in the Madras Court-Fees Act or any other statute which enables the defendant to move the High Court in revision against the decision of the Court of first instance on the matter of court-fee payable in a plaint.

Per contra Section 11 of the Act speaks about the enquiry to decide the matter relating to sufficiency or otherwise of the court fee paid after holding enquiry.

What is held by this court in the case of Veeragouda and Others Vs. Shantakumar @ Shantappagowda, is that when once 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.

In this view of the matter, trial court has not adopted right approach to the real state of affairs and has not conducted any enquiry under Section 11(2) and (3) of Karnataka Court Fee and Suits Valuation Act. No jurisdictional error is found to exercise of supervisory jurisdiction by this court in this petition filed under Article 227 of Constitution of India. Accordingly, the petition is allowed. The impugned order is set aside. The matter is remanded to the trial court to hold enquiry under Section 11(2) and (3) of Karnataka Court Fee and Suits Valuation Act to arrive at a proper decision.