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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 23% DAY OF OCTOBER 2009
BEFORE '
THE HOEWBLE MR. JUSTICE ASHOK B. HINCHIGERIYVII V'
WRIT PETITION NQ19939 OF 3;(}09'(«r«}'1\/i%.jCI_?«('fI'A]":~
AND V * -
WRIT PE'FI'I'ION NO21573 OF 20Q9'Y{G'M--OIfl.O1 . «. "
BETWEEN
SR1 N.NANJAPPA
S/O.LATE SRI.NANJUNDAPP"A__
AGED ABOUT 70 YEARS " 'I
R/A.1\Io.9,3RD MAIN I V
BAHUBALI NAGARA, JALAHALLI ' ' -
EANGALOREI3 PE'I'ITIONER
{BY B" "Am/. ,)
SR1 GYANCHANI) Q , .
S/O LATE SRI".I)_CHENGA1§¥LAL
56 YI*3ARS~ _
"B!/AINO.TKZNEIFLOOR "" I'
SRRCROSS, SQRSTREET,
'Al\§'CHEI3_ET; EANG;ALORE--53
ya
SRI*.N}'RAMAG?I+:ANORA RAJU
_ AGEE 43..YEARS
. vs/O SMNARAYANA RAJU
'~ISIIITIMBHAGYAIIAKSHMI
-_A;'GED'39 YEARS
.f"w;§O SRI.RAMACHANDRA RAJU
" BOTH ARE R/A.No.2o, 2ND MAIN
" BAHUBALI NAGARA, JALAHALLi
BANGALORE--13 RESPONDENTS
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{BY SR1 MANJUNATH G.K. ADV., FOR
EVLSJ. ASSOCEATES, FOR R-1
SR1 H.HANUNLANTPLARAYAPPA, HCGP FOR STATE
R–2 8: R-3 SERVED]
THESE WRIT PETITIONS ARE FILED UNDER _
AND 227 OF THE CONSTITUTION OF INDIA PRAYINO__TOIQUASeHj
THE IMPUONEO ORDER DT. 17.12.2008 PASSED –SYf-THE CITY «. ‘
CIVIL COURT, BANGALORE ON 1.A.3 II\T'”OSI 1143/_2″oo_5 VIDE;
ANX~E AND ALSO BE PLEASED TO QUASHA FIHE .IMPUGNED.
ORDER DT. 20.6.09 PASSED BY THE CITY C’iV1};;,CC)L§RT,’~._
BANGALORE ON I.A.4 IN OS 1143/2006 VIDE P;NX–H’AfiI)_v ”
THESE PETITIONS cOM1NG”‘d’e’u.O’N_ FC)R– 1«”IeRE1’;:MINARY
HEARING IN ‘E’ GROUP THIS DAY;— TE-«IE”~-.COUP'{‘fvv–3\/IADE THE
FOLLOWING: x 5 _ .
As the issue perfains of eourt fee, I have
put Sri learned Government
Pleader on notice.
The petitioner has question the orders, dated
17.12.2005 ‘{I’mneXure¥E)) a°nd.”20.e.2009 {AnneXure–H] passed
Tithe Prineipal City Civil and Sessions Judge.
EangaIor’r;,o:I’ in O.S.No.}.143/2006.
2. The “first respondent filed the suit against the
the respondent Nos.2 and 3 seeking the relief
“A.V..of..d_eO1aration, permanent injunction, etc. In the said suit
dud’~.__proOeedings, the petitioner filed I.A.No.3 invoking Order 7
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Ruie i1(c) of C.P.C. and sought rejection of the piaint on the
ground of the payment of insufficient court fee. The
Court dismissed the same holding that it is ”
decide the issue of court fee w’ithout””‘the .of4:jthe-.g
parties. Not content with this dismissal tithe
filed I.A.No.4 invoking Section 15i’–oi’*~C.P.C.~.for–..tav3xing”up’V’the ‘
issue No.7 as a preliminary’ .issue;””‘TheVissue i\To;’7’*reads as
fo11ows:~
“7. Vifhethef. suit 1: utiluaitiorji. .V by the
plaintiff and.coLtrt:fee.._gpeiit:i’V_’byVhim, is proper
The said I.A.:”‘a1so_ met’ fate that was met by the
I.A.No.3. Thesexipetitiotns areiiied raising the chalienge to the
orders on.’:g_:¥’:A{t_Nost_. 3 and ”
..VSri”R;E§§Sadasivappa, the learned counsel for the
I-‘V,petition’er'”sulornitsthat the Court is obliged to take up issue
_j:’No.7._as the fjreliminary issue. He further submits that the
5.provisions’-contained in Order 7 Rule 1 MC) and the provisions
“cogitiajned in Section 11(2) of the Karnataka Court–Fees and
Valuation Act, 1958. operate in two different spheres.
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Therefore, the dismissal of l.A.l\’5’o.3 is no ground for the
dismissal of I.A.No.4 also. He also relied on the
decisions:
1) 2002 (4) KCCR 2987
Company and Another Vf. ;Maha1it’*.Q.Qlttoul:’
Company and Others. To
1:) ILR 1999 KAR 3660 W Tl1immaiah– x_f_.’S1;eeiiitrlaHsa
4. Sri G.K.Manjuna-th, the—learnedA_coufisvel aiipearing
for M/s.M.S.J. Associates submits
that the matter .for_the respondents (plaintiffs)
evidence. He’ Court has formed the
View that;tiie,evider1,c’e’ of the parties is required for deciding
and therefore the Trial Court has rightly
4.
5. Sri’ AH.Hanumantharayppa, the learned
Cit”‘:Co:rer:imer;.t”~–i5leader submits that the Court has no option,
issue No.7 as a preliminary issue before it starts
lrecording of evidence on other issues. He further submits
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that, it is necessary to refer to the provisions Contained in
Section 1 1(2) of the Karnataka Courtwfees and Suits
Act, 1958, which is extracted hereinbelow:
“1 1. Decision as to proper fee in,Vcourt$:”‘{‘} ” _
{2} Any defendant may, by
filed before the frst hearing..___of the ‘suit H
evidence is recorded on the of
subject to the next succeeding”‘su_b not tater,
plead that the subject–rr1dtter’0f not been
properly valued or that”-the:fee– ;no”t’Jsu_ffi.cient.
All questions?__’Vari;;€;ingt:n 33s.uch.4_”pledsv–shall be heard
and decided: euizience’*vw£vfrecorded affecting
such of the claim If the
court decides that matter of the suit has
not been properly. or that the fee paid is not
the cour*t-s.'”Lall fix a date before which the
plaint .,<A;vfLall.}be_ amended in accordance with the
and the deficit fee shall be paid. If
the'–plai__nt not amended or if the deficit fee be not
uqititin the ttrne ailowed, the plaint shall be
'A lv~:frejei:ted and the court shall pass such order as it
— just regarding costs of the suit. ”
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6. The Division Bench of this Court in the case of
VEERAGOUDA AND OTHERS v.
SHANTAPPAGOWDA, reported in ILR 2009 _
held that if an issue regarding court fee is V
issue shall be decided before record’ing:1″eVide:1ce’
issues. Therefore, the mandate of lawflis very: No –. ‘
discretion is left to the Court fo_r__Rpos’i:p_onirig«.the_t1ecision
regarding issue of court fee is taken in the
written statement or _before:’the’eyi.den»ce «recorded. In this
case, it is not that__;’the’-Treeording of the evidence
has not yet in paragraph 4 of
the written ignsufficiency of the court fee.
Further, the issue No;7.v’isdaiso: framed regarding the payment
of. Vcou-rt fee. I
. the”se circumstances, the order passed on
isset aside. The Trial Court is directed to take
Di1p4″issuec__NoV;’7 as a preliminary issue before it proceeds to
V’ ‘ – . V_rec_o_rd’ the” evidence on other issues.
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8. In View of this direction, there is no need tospass
any orders on the Trial Courts order an I.A.No.3.
9. These petitions are ailowed in part. as ~
costs.
VGR