Vasanth Colour Laboratories Limited vs Smt. Divya Devi and Others

A.N. Venugopala Gowda, J.—The 1st Respondent/Plaintiff, has instituted a suit against the Petitioner and Respondents 2 and 3/Defendants, seeking relief of possession, recovery of arrears of rent and damages for use and occupation of the suit premises. Court fee in respect of arrears of rent has been calculated and paid as per Section 21 read with Article 1 of Schedule I of the Karnataka Court Fees and Suits Valuation Act, 1958 (for short, ''the Act'') and the Court fee in respect of the relief of recovery of suit premises has been valued u/s 41(2) of the Act and payment made.

Written statement was filed and suit was contested. It was stated therein that, Rs. 22,00,000/- has been spent on cost of construction of the building, fittings and fixtures and the valuation made is incorrect and the Court fee paid for various reliefs prayed is inadequate.

The suit was decreed on 28-5-2002. The decree was questioned in RFA No. 646 of 2002. Said appeal was allowed on 2-11-2009 and the suit was remitted to the Trial Court for being tried along with O.S. No. 3396 of 1996.

Noticing the contention as regards incorrect valuation and insufficiency of Court fee paid, the Trial Court has raised two issues :

Whether the valuation of the suit for the purpose of Court fee is not proper?

Whether the Court fee paid is insufficient?

On an application filed by the 1st Defendant/Petitioner u/s 11(2) of the Act, the said issues were treated as preliminary issues and having been answered in the negative, the 1st Defendant has filed this writ petition.

Sri Srinivasa Raghavan, learned Counsel appearing for the Petitioner contends that, appreciation of material in arriving at the findings as regards the preliminary issues is improper, inasmuch as, there is non-consideration of material evidence, which has been placed on record and hence, the impugned order is perverse, irrational and illegal.

Sri H.V. Nagaraj Rao, learned Advocate appearing for the 1st Respondent, firstly contended that, the writ petition by the Defendant challenging the findings with regard to valuation and sufficiently of Court fee is not maintainable and secondly, even if some error was made by the Court in the matter of appreciation of evidence and in arriving at the findings as alleged, the finding cannot be interfered within exercise of the supervisory jurisdiction/writ jurisdiction.

In view of the rival contentions, two points arise for consideration, namely.--

(1) Whether the Defendant can maintain a writ petition under Article 227 of the Constitution of India against an order passed by the Trial Court deciding the valuation and sufficiency of Court fee paid?

(2) If the writ petition is not maintainable, what remedy the Defendant can avail?

Re: Point No. 1 :

To answer the point, it is necessary to notice Section 11(2) of the Act and the same reads as under :

Decision as to proper fee in Courts.--.....

(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.

It is clear from the provision that, if any Defendant pleads in his written statement that the subject-matter has not been properly valued or the Court fee paid is insufficient, then it is mandatory on the part of the Trial Court to decide the issues so raised before recording of the evidence. (See Mukunda Nayak v. Sundara Nayak 1970 (1) M. L.J. 85; Umarabba v. Pathunni and Ors. 1984 (2) Kar. L.J. 97; The Karnataka Theosophical Federation (Registered), Bangalore Vs. Balakrishna Ashrama, Mulabagal Town, Kolar District, ; Thimmaiah Vs. Sreenivasa, ; A. Madhava Hegde Vs. Rajendra S. Revankar, .

In the case on hand, the Trial Court in fact has decided the issues relating to valuation and sufficiency of Court fee payable by holding an enquiry and has acted in conformity with the provision noticed supra. There is no error in exercise of the jurisdiction and in the matter of consideration of the said two issues.

Whether proper Court fee has been paid on the plaint, is primarily a question between the Plaintiff and the State. Section 11(2) of the Act only enables the Defendant to plead that the subject-matter of the suit has not been properly valued and that the fee paid is not sufficient, upon which the questions arising on such pleas shall be tried and decided. If the Court decides that the subject-matter of the suit has not been properly valued and 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 and in case of default, the plaint shall be rejected and the Court shall pass such order as it deem just regarding costs of the suit. The provision only enables the Defendant to raise the contention and to assist the Court at the just decision of the question, but does not arm the Defendant to obstruct the progress of the suit, after conducting enquiry and findings are recorded.

Re: Point No. 2 :

To answer this point, it is necessary to notice Section 11(4)(a) of the Act and the same reads as follows.--

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.

The provision confers right on the parties to the suit to raise the issue before the Court of appeal, if the occasion arises and in such a situation, the procedure laid down under the said provision will have to be followed for adjudicating and recovery of deficit Court fee. (See Gadigeppa v. Gangawwa 1947 (2) Kar. L.J. 285; Visvarama Hotels Ltd. Vs. Anjuman-e-Imamia, .

Indisputedly, the Trial Court treated the issues quoted supra as preliminary issues, conducted an enquiry and upon appreciation of the evidence placed on record, has passed the impugned order. This is not a case wherein the impugned order can be held as one passed without jurisdiction or irrational, inasmuch as, the Trial Court has followed the procedure prescribed under Sub-section (2) of Section 11 of the Act and upon appreciation of the evidence, has recorded the findings and conclusion. Unless the order is one without jurisdiction or contrary to law, there cannot be interference in exercise of the jurisdiction under Article 227 of the Constitution of India.

In view of the foregoing discussion, the Petitioner has no locus standi to question the impugned order. Hence, the writ petition stands rejected subject to the observations made supra. However, in the circumstances of the case, there shall be no order as to costs.