Comparative Citations:
2011 (1) KCCR 52, 2011 (2) KantLJ 1

Heard the learned counsel for the petitioners and the respondent and the learned Government Advocate.

2. The respondent herein had filed a suit in O.S.2516/2007 against the petitioners and seven others, who are not made parties to the present petition, as according to the petitioners, they are not necessary parties. The suit was for the relief of cancellation of two sale deeds, both dated 19.7.1995 executed by the respondent and another in favour of petitioner no.1 herein. The suit was brought against the petitioners as well as seven others who were said to be the tenants of several tenements in the property. However, those tenants are not made parties, herein by the petitioners, as according to the petitioners they are not necessary parties in deciding this petition. The suit filed by the respondent was valued at Rs.4,40,000/- for purposes of court fee and a court fee of Rs.29,735/- was paid on the plaint. The petitioners herein had contested the suit and had contended that the court fee paid was insufficient. Issue no.7 was framed relating to the sufficiency of the court fee paid, which was treated as a preliminary issue and the trial court, by its order dated 7.9.2009 held that the court fee paid was sufficient. It is that order which is sought to be challenged in the present petition.

3. The learned Counsel for the petitioners would submit that the suit was filed on 23.3.2007 challenging the sale deeds dated 19.7.1995. The value of the properties indicated in the sale deeds was at Rs.2,22,000/-, but as on the date of filing of the suit, as per the guide-line value fixed by the State Government, for every square foot of land in the vicinity of the suit property, was at Rs.500/-. If the value of land is calculated at that rate, then the market value of the property would be Rs.23,62,000/- and the court fee payable would be Rs.1,11,073/-. It is pointed out that the learned trial Judge however, while evaluating the market value of the suit property has not taken market value of the property as on the date of the institution of the suit and has proceeded on the value set-forth in the instruments which were of the year 1995. Therefore, there is an illegal finding on issue No.7. It is also pointed out that as on 19.4.2007, the market value of the very property has been revised and it was fixed at Rs.1,100/- per square foot. If this basis is adopted, the market value would escalate even further and consequently, the court fee. It is on these contentions, that the learned counsel would urge that since the suit was filed in the year 2007, it was the value of the property as on that date which was material for computing the court fees. The learned counsel would draw attention to Section 38 of the Karnataka Court fees and Suits Valuation Act, 1958 (hereinafter referred to as ‘the 1958 Act’ for brevity), particularly, with reference to Explanation (2) thereto, which reads as follows:-

“38. Suits for cancellation of decrees, etc.: (1) In a suit for cancellation of a decree for money or other property having a money value, or other document which purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest in money, movable or immovable property, fee shall be computed on the value of the subject matter of the suit, and such value shall be deemed to be.

If the whole decree or other document is sought to be cancelled, the amount or value of the property for which the decree was passed or to her document was executed;

If a part of the decree or other document is sought to be cancelled, such part of the amount or value of the property.

(2) if the decree or other document is such that the liability under it cannot be split up and the relief claimed relates only to a particular item of property belonging to the plaintiff or to the plaintiff’s share in any such property, fee shall be computed on the value of such property or share or on the amount of the decree, wh