Nagareshwar Devasthan Trust vs Iranna Basanna Karigoudar and Others

K.N. Phaneendra, J.—The present petition is filed calling in question the order dated 21.02.2015 passed on I.A. No. 31 filed under Order XIV Rule 2 r/w. Section 151 of CPC in O.S. No. 141/1993 on the file of the Principal Senior Civil Judge and JMFC, Hubli, in refusing to treat Issue No. 13 as preliminary issue which is with reference to the Court fee and dismissing the said I.A. No. 31 consequently.

I have heard the arguments of the learned counsel for the respective parties.

The records disclose that the plaintiffs suit was for declaration and other reliefs. Earlier suit was once disposed off on 02.02.2002 and the said decree was challenged in RFA Nos. 270/2002 c/w. 1444/2006 and 1445/2006 and there was an order of remand by this court on 04.07.2012 for fresh enquiry into the matter. After remand, an application was filed for amendment seeking possession also by the plaintiff and thereafter, the court has also framed additional issues. Looking to the issues framed by the court it is clear that, even much earlier to the framing of additional issues, after remand, the court had already framed Issue No. 13, which is referring to court fee. However, the said issue was not tried as a preliminary issue at the earliest point of time. After remand and after amendment of the plaint and after recasting the issues, the case was set down for evidence of the parties and in fact the plaintiffs evidence had already completed and at this stage, it appears the defendant made an application for considering the issue of court fee, as a preliminary issue. The said application was rejected by the trial court by the order impugned herein.

The main question that arises before this court is, whether after recording of the evidence, the court can treat the said issue as a preliminary issue, as per the provision under the Karnataka Court Fee and Suit Valuation Act (for short, KCF & SV Act). Section 11 (2) of the Act which only refers to all questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim.

On a plain reading of the above said provision, it is clear that, if a party to the proceedings seeks the court to treat the issue of court fee as a preliminary issue, then it is the duty of the court to see that, if any issue is framed with reference to the court fee, that shall be first heard and decided and thereafter, the court has to proceed to record the evidence. In this particular case, neither at the earliest point of time when the court has recorded the evidence of the parties, it has not treated the issue of court fee as a preliminary issue nor even after remitting the matter, the trial court also has not treated the issue of court fee, as a preliminary issue. It is a procedural irregularity on the part of the court in not following the mandatory provision, for that neither party is responsible. However, having come to know that the court has not treated any issue with regard to court fee and tried it as a preliminary issue, the defendants appears to have reminded the court by filing an application and bringing it to the knowledge of the court about the responsibility of the court to treat the said issue as a preliminary issue prior to recording the evidence of the parties on merits. In that context, the court has refused to grant the remedy because of the reason that, the court as the Appellate Court, has directed the trial court to deal with the matter and dispose of the case within the specified time and also the trial court has observed that more than 22 years have already been elapsed and the suit is still pending. Therefore, it must have made its endeavor to dispose of the case at the earliest. In this regard, whether the delay in proceeding with the suit itself is sufficient to turn-down the prayer sought by the defendant or the responsibility of the court can be overlooked. In this regard, it is worth to look into the decision of this court in W.P. No. 82281/2011 in the case of Omprakash v. Narasinghjee since deceased by his LRs. In this case also, the court has observed that the court fee issue has not been properly considered. In the said decision, the case has been disposed of by the trial court in O.S. No. 24/2003 on 04.07.2011 and thereafter, the aggrieved party filed an appeal against the judgment and decree passed and the said case was remanded to the trial court once again. After remand, the defendants requested the court to treat the issue regarding court fee and jurisdiction, as a preliminary issue. That request was rejected on the ground that the suit was seven years old and also in the Review Meeting the District Judge has directed the concerned Judge to dispose of the old cases expeditiously. Therefore, on the request of the defendant''s counsel considering the delay in filing the said suit, the said application came to be dismissed.

After considering the said factual matrix, this court relying upon the decision in the case of Veeragouda and Others Vs. Shantakumar @ Shantappagowda, , had observed that,-

"Even in matters which are more than seven years old, then though the directions have been issued by the High Courts or District Court to the trial court to dispose of the cases expeditiously, it cannot be disposed of contrary to law. Therefore, proper course open to the trial court to take-up such matters on day to day basis and dispose of the applications filed to treat the issue regarding court fee and jurisdiction as a preliminary point and then conduct trial on day to day basis but not to reject the application on the ground that it is an old matter..".

In the operative portion of the said petition, while directing the trial court to decide the question regarding court fee and jurisdiction as preliminary point, this court has further observed that,-

"Take-up the matter for trial on day-today basis without granting even one day''s adjournment. If any adjournment is granted, it shall not be adjourned to beyond one day and imposition of cost is mandatory".

In another decision of this court in the case of Abdul Salam Vs. The District Automobile Workers Association and Another, . The sum and substance of the observations made in this case at Paras-19 and 20 are as follows:--

"19. On hearing the Learned Advocates, the question that falls for my consideration is:

"Whether the Trial Court is right in proceeding to record the evidence on the merits of the case without giving its finding on the issue of the payment of court fee (additional issue No. 2)"

To answer this question, it is necessary to refer to the provisions contained in section 11(2) of the Karnataka Court-Fees and Suits Valuation, Act, 1958, which reads as follows:

"11. decision as to proper fee in courts:

(1) XXX XXX XXX XXX

(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, 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.""

In view of the above said two decisions of this court, it is crucially ensured that recording of evidence by the court itself will not come in the way of the courts treating the said issue of court fee, as a preliminary issue. One more thing the court would like to add is, suppose if the suit of the plaintiff is dismissed giving a finding on the issue with reference to the court fee, if the plaintiff does not want to prefer any appeal and to avoid drawing-up of decree and he wants it to be deferred for non-payment of the court fee, then it becomes the responsibility of the court to run behind the plaintiff and his property etc., in order to recover such court fee. In order to avoid such contingency later, probably the provision under Section-11 of the KCS and SV Act fixes the responsibility on the court itself to decide the court fee issue as a preliminary issue so as to call upon the party to pay the court fee first and then seek for his remedies before the court. Therefore, I am of the opinion that in view of the above said decisions and also in view of Section-11 of the KCF and SV Act, the petition deserves to be allowed. Consequently I.A. No. 31 filed by the defendant also deserves to be allowed.

In the result, the following order is passed;-

The petition is allowed. Consequently, the order dated 21.02.2015 passed by the Principal Senior Civil Judge, Hubballi, in O.S. No. 141/1993 on I.A. No. 31, is hereby set aside. Consequently, the said application-IA No. 31 filed under Order XIV Rule 2 r/w. Section 151 of CPC filed by Defendant No. 1 is allowed. The trial court is directed to treat the issue of court fee as a preliminary issue and dispose of the said application as early as possible, without granting unnecessary adjournments to the parties and after deciding the said issue of Court Fee, take-up the matter for trial on merits of the case on day to day basis, without granting unnecessary adjournment and if court feels it is absolutely necessary, limited adjournment be granted by imposing cost, which the court deems fit.