Full Judgment Text
1
®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 7 DAY OF OCTOBER, 2015
B E F O R E
THE HON’BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NO.52988/2013 (GM-CPC)
BETWEEN:
1. SRI ABU SALEH KHAN
S/O LATE S.M.KHAN
AGED ABOUT 71 YEARS
ND
R/AT 2 BLOCK
SITE NO.178, KATIPALLA
SURATHKAL
MANGALORE – 575 003.
2. SMT. RAHIMUNNISA SHARIEFF
W/O NOOR MOHAMMED SHARIEFI
AGED ABOUT 67 YEARS
R/AT S.A.S. APARTMENT
BEHIND KANKANADY MARKET
KANKANADY
MANGALORE – 575 003.
3. SRI ABDUL HAMEED KHAN
S/O LATE S.M. KHAN
AGED ABOUT 67 YEARS
R/AT NEAR HILL BREEZE LODGE
OOTY
TAMILNADU – 643 001.
2
4. SMT. KAMARUNNISA SAYED
W/O LATE SAYED IQBAL
AGED ABOUT 63 YEARS
R/AT D.NO.16 – 89 – 17, KULSHEKAR
MANGALORE - 575 003.
5. SMT. SHARIFUNNISA S. BASHEER
W/O ABDUL BASHEER
AGED ABOUT 62 YERAS
R/AT OPP. MADINA MASJID
NEAR TALUK OFFICE
KARKALA – 574 201.
6. SMT. MAHERUNNISA KHANUM
W/O LATE ABDUL AZEEZ KHAN
AGED ABOUT 55 YEARS
R/AT ‘RIVER VIEW’
POST AZHIKODE, KANNANORE
KERALA STATE - 670 009.
7. SRI ADIL KHAN
S/O LATE ABDUL AZEEZ KHAN
AGED ABOUT 30 YEARS
R/AT ‘RIVER VIEW’
POST AZHIKODE, KANNANORE
KERALA STATE - 670 009.
8. MISS ABID A. KHAN
D/O LATE ABDUL AZEEZ KHAN
AGED ABOUT 25 YEARS
R/AT ‘RIVER VIEW’
POST AZHIKODE, KANNANORE
KERALA STATE - 670 009.
9. MISS AMREEN A. KHAN
D/O LATE ABDUL AZEEZ KHAN
AGED ABOUT 23 YEARS
R/AT ‘RIVER VIEW’
POST AZHIKODE, KANNANORE
KERALA STATE - 670 009.
... PETITIONERS
(BY SRI S.VISHWAJITH SHETTY, ADV.)
3
AND:
1. SRI ABDUL KARIM KHAN
S/O LATE S.M.KHAN
R/AT BEERI KOTEKAR POST
MANGALORE TALUK - 575 003
2. SRI ABDUL RAUF KHAN
S/O LATE S.M.KHAN
R/AT BEERI KOTEKAR POST
MANGALORE TALUK - 575 003.
3. SMT. SHAMSUNNISA SALIM
W/O LATE Dr. U.SALIM
R/AT ADAM DAVOOD BUILDING
BADAGAPET
UDUPI - 576 101.
4. SRI SHEIK ABDUL RAHIM
S/O LATE SHEIK AHMED &
LATE JAIBUNNISSA
C/O. ABDUL RAFI KHAN
BEERJ, KOTEKHAR
MANGALORE - 575 003.
5. Dr. MOHAMMED NISSAR
S/O. LATE SHEIK AHMED &
LATE JAIBUNNISSA
C/O. ABDUL RAFI KHAN
BEERJ, KOTEKHAR
MANGALORE - 575 003.
... RESPONDENTS
(BY SRI G.RAVISHANKAR SHASTRY, ADV. FOR R1;
R2 AND R3 ARE SERVED BUT UNREPRESENTED
NOTICE TO R4 AND R5 IS DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER VIDE ANNEXURE-A DATED 05.11.2012 MADE ON
MEMO DATED 27.03.2010 IN O.S.NO.696/2008 BY THE COURT
OF PRINCIPAL CIVIL JUDGE, MANGALORE, D.K.
4
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners have instituted O.S.No.696/2008 in
the Court of Prl. Civil Judge, Mangalore, D.K., to pass a
decree for partition and separate possession of the plaint
schedule properties against the defendants. Suit has been
contested by filing written statement. Issues have been
raised on 04.02.2010. A Memo was filed by defendant
No.1, on 27.03.2010, to decide issue Nos.8 and 9 as
preliminary issues. The said Memo was opposed by the
plaintiffs by filing statement of objections on 03.04.2010.
The trial Judge having allowed the said Memo and decided
to treat the issue Nos.8 and 9 as preliminary issues vide
05.11.2012, this writ petition was filed.
2. Sri S.Vishwajith Shetty, learned advocate,
contended that issue Nos.8 and 9 cannot be treated and
decided as preliminary issues, since the same are not pure
questions of law. He submitted that the suit having been
instituted to pass a decree of partition and separate
5
possession and the plaintiffs being in joint possession and
enjoyment of the suit properties, have valued the suit
properties for the purpose of payment of court fee, under
Section 35 of the Karnataka Court fees and Suits Valuation
Act, 1958. Learned counsel contended that the evidence
of PW.1 having been recorded in part, the Trial Judge has
committed material error and illegality in passing the
impugned order.
3. Sri G.Ravishankar Shastry, learned advocate,
on the other hand, made submissions in support of the
order passed by the learned trial Judge to decide the issue
Nos.8 and 9 as preliminary issues. He submitted that the
impugned decision being in consonance with settled
principles of law, no interference is called for.
4. Perused the petition and considered the rival
contentions. The point for consideration is, whether the
impugned decision is perverse or illegal?
6
5. Issue Nos.8 and 9 raised in the suit are to the
following effect:
“8) Whether the court fee paid by the plaintiff is
sufficient?
9) Whether the court has jurisdiction to try this suit?”
6. In UMARABBA Vs. PATHUNNI AND OTHERS, 1984
(2) Kar.L.J. 97, it has been held that under Section 11(2) of
the Karnataka Court Fees and Suits Valuation Act, 1958,
which is a special Act, the Trial Court is required to first
decide the issue whether the court fee paid is proper or
not. It was held in the said case, that it is incumbent on
the trial Court to decide the issue relating to the court fee
before recording the evidence affecting the parties on the
merits of their claim.
THE KARNATAKA THEOSOPHICAL FEDERATION
7. In
(R) Vs. BALAKRISHNA ASHRAMA, ILR 1999 KAR 2930, repelling
a contention that the issue should not have been decided
as a preliminary issue as it required evidence and
therefore, should not have been decided until recording of
7
the evidence on all issues, it has been held that the issue
relating to the court fee shall have to be heard and decided
before recording the evidence on other issues.
8. In ABDUL SALAM Vs. THE DISTRICT AUTOMOBILE
WORKERS ASSOCIATION, REP. BY ITS SECRETARY AND
ANOTHER, ILR 2010 KAR 3018, it has been held, that once a
plea is taken by the defendant in his written statement
that the subject-matter has not been properly valued or
that the court fee paid is not sufficient, it is incumbent on
the Court to determine the court fee that is payable and
that the Court cannot skip the issue of court fee and
proceed to record the evidence on merits of the case. It
has been made clear, that the issue regarding valuation of
the suit and payment of court fee shall be tried as a
preliminary issue, if necessary, after recording of evidence
and the court has to decide the said preliminary issue,
before the evidence is recorded on the merits of the case.
VEERAGOUDA & OTHERS Vs. SHANTAKUMAR @
9. In
SHANTAPPA GOWDA, ILR 2009 KAR 887 (DB), it has been
8
held, that the Act is a special law and it having received
the assent of the President, prevails over the general law
and when a special mode has been prescribed by special
law to do a particular job or to exercise the power in
relation thereto, then the special law has to prevail over
the general law and the mode so prescribed by special law
would have to be followed in respect of the matters
covered therein.
10. In view of the well settled position of law and
there being a statutory mandate on the Court to decide the
issue of court fee before recording evidence on merits of
the respective claim of the parties, the trial court should
follow the mandate of law.
11. In the present case, the trial court having
committed the mistake in proceeding to record the
evidence of PW.1, on all the issues and before
commencement of cross-examination, a Memo dated
27.03.2010 was filed by defendant No.1, to try and decide
the issue Nos. 8 and 9 as preliminary issues. The trial
9
Judge having realized the mistake committed, has passed
the impugned order.
12. The Court has inherent power to correct its
own proceeding, when it is satisfied that in passing a
particular order, it was misled by one of the parties or it
has committed a mistake. The Court is bound to remedy
the mistake in accordance with the principle ‘actus curiae
neminem gravabit’ - an act of the Court shall prejudice no
one. In the said view of the matter, the impugned
decision being in accordance with the settled principles of
law, I do not find justification to interfere with the
impugned order.
In the result, petition being devoid of merit, is
rejected. However, if the plaintiffs make an application
seeking to recast the issues, the same shall be considered
and order passed in accordance with law.
Sd/-
JUDGE
sac*
®
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 7 DAY OF OCTOBER, 2015
B E F O R E
THE HON’BLE MR. JUSTICE A.N. VENUGOPALA GOWDA
WRIT PETITION NO.52988/2013 (GM-CPC)
BETWEEN:
1. SRI ABU SALEH KHAN
S/O LATE S.M.KHAN
AGED ABOUT 71 YEARS
ND
R/AT 2 BLOCK
SITE NO.178, KATIPALLA
SURATHKAL
MANGALORE – 575 003.
2. SMT. RAHIMUNNISA SHARIEFF
W/O NOOR MOHAMMED SHARIEFI
AGED ABOUT 67 YEARS
R/AT S.A.S. APARTMENT
BEHIND KANKANADY MARKET
KANKANADY
MANGALORE – 575 003.
3. SRI ABDUL HAMEED KHAN
S/O LATE S.M. KHAN
AGED ABOUT 67 YEARS
R/AT NEAR HILL BREEZE LODGE
OOTY
TAMILNADU – 643 001.
2
4. SMT. KAMARUNNISA SAYED
W/O LATE SAYED IQBAL
AGED ABOUT 63 YEARS
R/AT D.NO.16 – 89 – 17, KULSHEKAR
MANGALORE - 575 003.
5. SMT. SHARIFUNNISA S. BASHEER
W/O ABDUL BASHEER
AGED ABOUT 62 YERAS
R/AT OPP. MADINA MASJID
NEAR TALUK OFFICE
KARKALA – 574 201.
6. SMT. MAHERUNNISA KHANUM
W/O LATE ABDUL AZEEZ KHAN
AGED ABOUT 55 YEARS
R/AT ‘RIVER VIEW’
POST AZHIKODE, KANNANORE
KERALA STATE - 670 009.
7. SRI ADIL KHAN
S/O LATE ABDUL AZEEZ KHAN
AGED ABOUT 30 YEARS
R/AT ‘RIVER VIEW’
POST AZHIKODE, KANNANORE
KERALA STATE - 670 009.
8. MISS ABID A. KHAN
D/O LATE ABDUL AZEEZ KHAN
AGED ABOUT 25 YEARS
R/AT ‘RIVER VIEW’
POST AZHIKODE, KANNANORE
KERALA STATE - 670 009.
9. MISS AMREEN A. KHAN
D/O LATE ABDUL AZEEZ KHAN
AGED ABOUT 23 YEARS
R/AT ‘RIVER VIEW’
POST AZHIKODE, KANNANORE
KERALA STATE - 670 009.
... PETITIONERS
(BY SRI S.VISHWAJITH SHETTY, ADV.)
3
AND:
1. SRI ABDUL KARIM KHAN
S/O LATE S.M.KHAN
R/AT BEERI KOTEKAR POST
MANGALORE TALUK - 575 003
2. SRI ABDUL RAUF KHAN
S/O LATE S.M.KHAN
R/AT BEERI KOTEKAR POST
MANGALORE TALUK - 575 003.
3. SMT. SHAMSUNNISA SALIM
W/O LATE Dr. U.SALIM
R/AT ADAM DAVOOD BUILDING
BADAGAPET
UDUPI - 576 101.
4. SRI SHEIK ABDUL RAHIM
S/O LATE SHEIK AHMED &
LATE JAIBUNNISSA
C/O. ABDUL RAFI KHAN
BEERJ, KOTEKHAR
MANGALORE - 575 003.
5. Dr. MOHAMMED NISSAR
S/O. LATE SHEIK AHMED &
LATE JAIBUNNISSA
C/O. ABDUL RAFI KHAN
BEERJ, KOTEKHAR
MANGALORE - 575 003.
... RESPONDENTS
(BY SRI G.RAVISHANKAR SHASTRY, ADV. FOR R1;
R2 AND R3 ARE SERVED BUT UNREPRESENTED
NOTICE TO R4 AND R5 IS DISPENSED WITH)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER VIDE ANNEXURE-A DATED 05.11.2012 MADE ON
MEMO DATED 27.03.2010 IN O.S.NO.696/2008 BY THE COURT
OF PRINCIPAL CIVIL JUDGE, MANGALORE, D.K.
4
THIS PETITION COMING ON FOR PRELIMINARY HEARING
IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners have instituted O.S.No.696/2008 in
the Court of Prl. Civil Judge, Mangalore, D.K., to pass a
decree for partition and separate possession of the plaint
schedule properties against the defendants. Suit has been
contested by filing written statement. Issues have been
raised on 04.02.2010. A Memo was filed by defendant
No.1, on 27.03.2010, to decide issue Nos.8 and 9 as
preliminary issues. The said Memo was opposed by the
plaintiffs by filing statement of objections on 03.04.2010.
The trial Judge having allowed the said Memo and decided
to treat the issue Nos.8 and 9 as preliminary issues vide
05.11.2012, this writ petition was filed.
2. Sri S.Vishwajith Shetty, learned advocate,
contended that issue Nos.8 and 9 cannot be treated and
decided as preliminary issues, since the same are not pure
questions of law. He submitted that the suit having been
instituted to pass a decree of partition and separate
5
possession and the plaintiffs being in joint possession and
enjoyment of the suit properties, have valued the suit
properties for the purpose of payment of court fee, under
Section 35 of the Karnataka Court fees and Suits Valuation
Act, 1958. Learned counsel contended that the evidence
of PW.1 having been recorded in part, the Trial Judge has
committed material error and illegality in passing the
impugned order.
3. Sri G.Ravishankar Shastry, learned advocate,
on the other hand, made submissions in support of the
order passed by the learned trial Judge to decide the issue
Nos.8 and 9 as preliminary issues. He submitted that the
impugned decision being in consonance with settled
principles of law, no interference is called for.
4. Perused the petition and considered the rival
contentions. The point for consideration is, whether the
impugned decision is perverse or illegal?
6
5. Issue Nos.8 and 9 raised in the suit are to the
following effect:
“8) Whether the court fee paid by the plaintiff is
sufficient?
9) Whether the court has jurisdiction to try this suit?”
6. In UMARABBA Vs. PATHUNNI AND OTHERS, 1984
(2) Kar.L.J. 97, it has been held that under Section 11(2) of
the Karnataka Court Fees and Suits Valuation Act, 1958,
which is a special Act, the Trial Court is required to first
decide the issue whether the court fee paid is proper or
not. It was held in the said case, that it is incumbent on
the trial Court to decide the issue relating to the court fee
before recording the evidence affecting the parties on the
merits of their claim.
THE KARNATAKA THEOSOPHICAL FEDERATION
7. In
(R) Vs. BALAKRISHNA ASHRAMA, ILR 1999 KAR 2930, repelling
a contention that the issue should not have been decided
as a preliminary issue as it required evidence and
therefore, should not have been decided until recording of
7
the evidence on all issues, it has been held that the issue
relating to the court fee shall have to be heard and decided
before recording the evidence on other issues.
8. In ABDUL SALAM Vs. THE DISTRICT AUTOMOBILE
WORKERS ASSOCIATION, REP. BY ITS SECRETARY AND
ANOTHER, ILR 2010 KAR 3018, it has been held, that once a
plea is taken by the defendant in his written statement
that the subject-matter has not been properly valued or
that the court fee paid is not sufficient, it is incumbent on
the Court to determine the court fee that is payable and
that the Court cannot skip the issue of court fee and
proceed to record the evidence on merits of the case. It
has been made clear, that the issue regarding valuation of
the suit and payment of court fee shall be tried as a
preliminary issue, if necessary, after recording of evidence
and the court has to decide the said preliminary issue,
before the evidence is recorded on the merits of the case.
VEERAGOUDA & OTHERS Vs. SHANTAKUMAR @
9. In
SHANTAPPA GOWDA, ILR 2009 KAR 887 (DB), it has been
8
held, that the Act is a special law and it having received
the assent of the President, prevails over the general law
and when a special mode has been prescribed by special
law to do a particular job or to exercise the power in
relation thereto, then the special law has to prevail over
the general law and the mode so prescribed by special law
would have to be followed in respect of the matters
covered therein.
10. In view of the well settled position of law and
there being a statutory mandate on the Court to decide the
issue of court fee before recording evidence on merits of
the respective claim of the parties, the trial court should
follow the mandate of law.
11. In the present case, the trial court having
committed the mistake in proceeding to record the
evidence of PW.1, on all the issues and before
commencement of cross-examination, a Memo dated
27.03.2010 was filed by defendant No.1, to try and decide
the issue Nos. 8 and 9 as preliminary issues. The trial
9
Judge having realized the mistake committed, has passed
the impugned order.
12. The Court has inherent power to correct its
own proceeding, when it is satisfied that in passing a
particular order, it was misled by one of the parties or it
has committed a mistake. The Court is bound to remedy
the mistake in accordance with the principle ‘actus curiae
neminem gravabit’ - an act of the Court shall prejudice no
one. In the said view of the matter, the impugned
decision being in accordance with the settled principles of
law, I do not find justification to interfere with the
impugned order.
In the result, petition being devoid of merit, is
rejected. However, if the plaintiffs make an application
seeking to recast the issues, the same shall be considered
and order passed in accordance with law.
Sd/-
JUDGE
sac*