No Prohibition To Adjudicate The Issue Regarding Court Fee As A Preliminary Issue: Karnataka HC
The Karnataka High Court observed that there is no prohibition to adjudicate the issue regarding Court fee as a preliminary issue.
The Court was considering against Trial Court order directing the plaintiff to pay deposit the Court fee at preliminary stage.
The single-bench of Justice C.M. Poonacha observed, "...it is relevant to note that the Trial Court while requiring the plaintiff to pay Court fee has recorded a finding that the suit properties are the agricultural properties and the same has come within the CMC limits. Having regard to the judgment of Full Bench of the Court in the case of Mrs. Elfreeda Winnifred D’ Souza the finding of the Trial Court requiring the plaintiff to pay the deficit Court fee is just and proper."
The Petitioner was represented by Advocate Shriharsh A. Neelopant while the Respondent was represented by Advocate Mrutyunjay S. Hallikeri.
Counsel for the Petitioner contended that the Trial Court's order is contrary to the judgment of the Full Bench of this Court in the case of Venkatesh R. Desai v/s Smt. Pushpa Hosmani and Others and that despite the Trial Court having been requested to defer the consideration of the issue regarding valuation and Court fee to be adjudicated along with other issues, the Trial Court has proceeded in adjudicating upon the same. Further relying upon a Co-ordinate Bench judgment of this Court in the case of R. Ananda V/S Nanjudaswamy, it was contended that merely because the suit property came within municipal limits ad valorem Court fee would not be payable. He further submitted that the plaintiff is ready and willing to pay the Court fee, in the event the Trial Court ultimately decides while considering the issue regarding the valuation and the sufficiency of Court fee along with other issues.
On the other hand, Counsel for Respondent submitted that even as per the judgment of the Full Bench of this Court in the case of Venkatesh R. Desai, it was the discretion of the Trial Court to consider the issue regarding valuation and the Court fee at the preliminary stage. He further contended that the judgment in the case of R.Ananda has been overruled by another Full Bench of this Court in the case of Mrs. Elfreeda Winnifred D’ Souza v/s Mr. Robin D’ Souza And Others.
The Court noted that the plaintiff has not been able to point out that the order of the Trial Court with regard to the valuation and the Court fee is erroneous on its merits. It further noted that when the preliminary issue was taken up for consideration, there was nothing on record to demonstrate that the judgment of the full bench was brought to the notice of the Trial Court.
“In any event, in view of the peculiar facts and circumstances of the present case, the Trial Court already having undertaken the exercise of considering the rival contentions of the parties and recording its finding regarding the valuation and Court fee as a preliminary issue and since there is no prohibition in the law laid down by the Full Bench of this Court in the case of Ventakesh R Desai to adjudicate the issue regarding Court fee as a preliminary issue, which exercise already having been completed by the Trial Court wherein considerable judicial time has been expended, which order is otherwise not erroneous, the contention of the petitioners that the said order is liable to be set aside merely on the ground that it is done at a preliminary stage, is not liable to be accepted and the extra-ordinary discretionary jurisdiction of this Court contained under Article 227 of the Constitution of India..”, the court said
The Petition was accordingly dismissed.
Cause Title: Erappa vs The Karnataka Kurubar Boarding, Koppal
Appearances:
Petitioner- Advocate Shriharsh A. Neelopant
Respondent- Advocate Mrutyunjay S. Hallikeri, HCGP Kirti Lata R. Patil
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