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Ravindra Siddappa Shavi vs Sunanda Kom. Narayan Shavi and Others

Karnataka High Court · Decided on 19 September 2013 · Citation: (2014) 1 KarLJ 519

HON’BLE JUDGES
A.N. Venugopala Gowda, J
CASE NUMBER
Writ Petition No. 61399 of 2010 (GM-CPC)
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Judgment

5 paragraphs · 365 words

A.N. Venugopala Gowda, J.—Petitioner instituted O.S. No. 189 of 2007 against the respondents, in the Court of Civil Judge (Senior Division) at Gadag, to pass a decree for partition and separate possession and to grant him 2/5th share in the suit properties. Defendants having filed written statements, issues were raised on 3-1-2008. Issue 5 reads as under:

Whether suit is not properly valued and Court fee paid is not proper?

The said issue ought to have been tried and decided as a preliminary issue, in view of the mandate of Section 11 of the Karnataka Court Fees and Suits Valuation Act, 1958. Instead, the suit having been taken up for trial, based on an alleged admission of P.W. 1, IA-IX filed by defendants 8 to 10, under Order 7, Rule 11(b) read with Section 151 of Civil Procedure Code, 1908 to reject the plaint. The Trial Court by allowing the application, directed the plaintiff to pay Court fee of Rs. 8 lakhs, by excluding Court fee already paid. Assailing the said order, this writ petition has been filed by the petitioner.

2.

Heard the learned Counsel on both sides and perused the writ record. Since the issue relating to insufficiency of Court fee paid has been raised on 3-1-2008, the Trial Court ought to have tried and decided the said issue as a preliminary issue. There is a procedural impropriety in not treating the said issue as a preliminary issue and in allowing IA-IX. In the circumstances, impugned order being vitiated, warrants interference.

In the result, writ petition is allowed and the impugned order is quashed. The grievance of the applicants in IA-IX being with reference to the insufficiency of the Court fee paid, issue 5 be tried and decided as a preliminary issue. The plaintiff shall adduce and complete his side of evidence on issue 5, within a period of four weeks from the next date of hearing and the defendants shall adduce and complete their side of evidence on issue 5, within a period of five weeks from the date the plaintiff closes his case. Issue 5 be decided within a period of two months from the date the parties close the evidence.