IN THE HIGH COURT OF KARNATAKA AT BANGALORE BEFORE WRIT PETITION NO.48728/2012 (GM-CPC)

Transcription

1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 25 TH DAY OF APRIL, 2013 BEFORE THE HON BLE MR. JUSTICE A.N. VENUGOPALA GOWDA BETWEEN: WRIT PETITION NO.48728/2012 (GM-CPC) 1. SRI NANJUNDASWAMY AGED ABOUT 62 YEARS, S/O LATE R. KARIBASAPPA. 2. SRI. GURUSWAMY AGED ABOUT 57 YEARS, S/O LATE R. KARIBASAPPA. BOTH ARE RESIDING AT NO.1879, OLD NO.3, GOVINDAPURA, ARABIC COLLEGE POST, BANGALORE SHIVU S/O LATE BASAVARAJ AGED ABOUT 35 YEARS R/AT NO.37, HAINES ROAD PULKESHI NAGAR FRASER TOWN BANGALORE PETITIONERS (BY SRI M.G.KUMAR, ADV.,) AND: 1. UMME FAR HA AGED ABOUT 37 YEARS,

2 2 D/O AL-HAJ ABDUL JABBER, R/O. NO.13, 13 TH CROSS, 2 ND MAIN, L.C. COLONY, YESHWANTHPURA, BANGALORE SRI. ADIL AHMED J AGED ABOUT 40 YEARS, S/O AL-HAJ ABDUL JABBER, R/O 13 TH CROSS, 2 ND MAIN, KESHAVA THEATARE, L.C.COLONY, YESHWANTHPURA, BANGALORE SRI. SYED ASGAR AGED ABOUT 52 YEARS, S/O SYED AKBAR, 4. SRI. SYED KABEER HUSSAIN AGED ABOUT 50 YEARS, S/O SYED NOOR HUSSAIN BOTH NO.3 AND 4 ARE R/O.NO.18, 4 TH CROSS, CHAMARAJPET, BANGALORE SRI. SYED ALEEM AGED ABOUT 40 YEARS, S/O HAJI BASITH SAHEB, R/O NO.18, PEEMMAIAH BLOCK, 2 ND CROSS, J.C. NAGAR, BANGALORE C/O KARNATAKA ENGINEERING WORKS, BAZAAR ROAD, YELAHANKA, BANGALORE RUBY SUMITRA AGED ABOUT 35 YEARS, D/O LATE YESU REDDY, R/O NO.18, SUMITRA NILAYA, M.E.S. COLONY, H.A.L,

3 3 BANGALORE SMT. SADATHUNNISSA AGED ABOUT 32 YEARS, W/O IMDAD PASHA, R/O.KARNATAKA ENGINEERING WORKS, BAZAAR ROAD, YELAHANKA, BANGALORE SMT. SHATAJUNNISSA AGED ABOUT 38 YEARS, W/O HAJI WAZIR SAHEB, R/O. DOOR NO.15, 3 RD CROSS, 2 ND MAIN, V.R. PURAM, PALACE GUTTAHALLI, BANGALORE RESPONDENTS (BY SRI SHANMUKHAPPA, ADV.,) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE ORDER DT , ANNEXURE-G, PASSED BY THE 5 TH ADDL. CITY CIVIL JUDGE, CCH-13 BANGALORE IN OS.NO.5427/2007 & DIRECT THE RESPONDENTS TO VALUE THE SUIT U/S.38(1) OF THE KARNATAKA COURT & SUIT VALUATION ACT & TO PAY PROPER COURT FEES ON THE MARKET VALUE OF THE SUIT PROPERTIES AND ETC., THIS PETITION COMING ON FOR PRELIMINARY HEARING THIS DAY, THE COURT MADE THE FOLLOWING: O R D E R Respondents are the plaintiffs and the petitioners are the defendants in O.S.No.5427/2007 pending in the

4 4 City Civil Court, Bangalore. Suit was instituted on , to pass a judgment and decree as follows: a. Declaration declaring that the judgment and decree dated passed in O.S.No.6870/2004 is not binding on the plaintiffs in respect of the schedule properties; b. Consequently, for a permanent injunction restraining the defendants, their men, their agents, their representatives or any person or persons acting under or through them from alienating, encumbering or creating any charge on the schedule properties; c. Costs of the suit; and d. Grant such other relief or reliefs as this Hon ble Court deems fit under the facts and circumstances of the case in the interest of justice and equity. 2. Office at the time of scrutiny having raised objection on , the plaintiffs have paid additional court fee of Rs.175/- on Suit having been registered and suit summons issued having been served on the defendants and they having entered appearance through their learned Advocate filed written statement on , wherein, apart from other

5 5 contentions, objection with regard to the valuation of the suit and sufficiency of court fee paid was raised. Issues having been raised and there being no issue with regard to the sufficiency or otherwise of the court fee paid and on an application filed under Section 11 of the Karnataka Court Fee and Suits Valuation Act, 1958 r/w Order 14 Rules 2 and 5 CPC, an additional issue with regard to the valuation and sufficiency of court fee paid was raised. Said issue having been decided on , holding that the court fee paid is sufficient and the valuation made is correct, this writ petition has been filed by the defendants. 3. Heard Sri. M.G.Kumar, learned Advocate appearing for the petitioners and Sri. H.S.Santhosh, learned Advocate appearing for the respondents and perused the writ petition record. 4. The trial Court has raised an additional issue on the basis of the pleadings of the defendants and also the application filed under Section 11 of the Act in

6 6 terms of the order dated Since there is statutory mandate to decide the issue relating to the payment of court fee as a preliminary issue, the trial Court is required to try and decide the said issue in terms of sub Section (2) of Section 11 of the Act. The trial Court has not examined as to whether the suit has been valued for the purpose of jurisdiction and payment of court fee under Section 38 of the Act, since the plaintiffs have sought for declaring a decree dated passed in O.S.No.6870/2004 as not binding on them. The trial Court ought to have kept in view the decision of the Apex Court in the case of SATHEEDEVI vs. PRASANNA & ANOTHER, AIR 2010 SCW 3754 and the decision of this Court in the case of SMT ANANDAMMA & OTHERS vs. SHARADA ALIAS MUNITHAYAMMA, (2011) 1 KCCR 52, while passing the impugned order. 5. The impugned order being not a considered order and there being material irregularity committed is unsustainable.

7 7 In the result, writ petition is allowed and the impugned order is quashed. Trial Court is directed to decide the preliminary-additional issue, keeping in view the pleadings of the parties and the ratio of decisions, noticed supra, expeditiously and within a period of two months from the next hearing date of the suit. Contentions of both parties are left open for consideration. No costs. ca Sd/- JUDGE