Point of law: Court Fee - It is evident that the Court has to find cut that the claim is under valued. Then at least require the plaintiff to correct the valuation and fix a time to pay deficit Court fee and if he fails to do so, then it has to dismiss the plaint- Court without fixing any date for payment or filing of such correct valuation slip dismissed application and rejected the plaint also which is not just and proper.

JUDGMENT :

This appeal arises out of the order dated 01.09.2006 passed by the Addl. Civil Judge (Sr.Dn.), Ballari, dismissing I.A.No.2 and rejecting the plaint in O.S.No.83/2004 with a prayer to set aside the order passed on 27.09.2005 and directing the trial Court to restore the suit to its original file.

2. The appellant is plaintiff before the trial Court and respondents are defendant Nos.1 to 6 before the trial court.

3. Plaintiff instituted a suit in O.S.No.83/2004 on the file of the Additional Civil Judge (Sr.Dn), Ballari seeking relief of declaration and possession of suit schedule properties. The plaintiff valued the suit at Rs.1,20,000/for the purpose of pecuniary jurisdiction and valued court fee at Rs.1,000/each on agricultural land and house property. It is further contended that the court has framed issues and Issue Nos.1 and 5 were framed regarding valuation of the Court fee and they were taken up as a preliminary issue.

4. The defendants No.1 to 6 filed their written statement. They denied the plaint averments. They have taken a contention that the lands are more than Rs.1,00,000/per acre and the house is worth of more than Rs.1,00,000/.

5. The trial Court framed an issue in this regard as issue No.5 out of eight issues framed. The said issue was erroneously decided and held that suit was not properly valued and court fee paid was not proper and directed to file fresh valuation slip and pay deficit court fee.

6. The plaintiff filed an applicationI.A.No.2 for review of the said order. The trial court not only dismissed the said applicationI.A.No.2 but also rejected the plaint. Hence, this appeal is preferred seeking to set aside the order.

7. Learned counsel for the appellant Sri B.Chidanand argued that the said issue regarding court fee cannot be treated as a preliminary issue and as it is a mix question of law and facts which requires evidence. The learned counsel relied upon decision of Full Bench of this Court in Venkatesh R. Desai vs. Smt.Pushpa Hosmani and others, reported in 2019 (1) KCCR 1 (FB) and prayed to allow the appeal.

8. Against this, the learned counsel for the respondent stated that the Court has directed the plaintiff to pay the Court fee and file a fresh valuation slip and as it is not filed, the Court has rightly dismissed the suit by rejecting the plaint. The learned counsel supported the order of the trial Court.

9. I have perused the impugned order. It is evident that the trial Court has framed 8 issues and one of the issues i.e., issue No.5 is ‘whether the suit is properly valued and the Court fee paid is correct’. It appears, the said issue is framed in view of the written statement filed by the defendants No.1 & 6, particularly paragraph No.17 of the written statement, wherein it is stated that the value of the landed property is more than Rs.5,00,000/and house property is more than Rs.1,00,000/. So the Court fee paid is not correct.

10. According to the plaintiff he has valued the landed property at Rs.1,20,000/for the purpose of jurisdiction and valued the house property at Rs.20,000/and paid the Court fee under section 7(2) and also under section 24(a) of the Karnataka Court Fee and Suit Valuation Act. The suit is for declaration and possession. One property is agricultural land and other is the house property.

11. It is pertinent to note that after framing the issues on 7.12.2004, the trial Court treated issue No.5 as preliminary issue and accordingly after hearing the parties the Court passed the impugned order.

12. It is also evident that the plaintiff has not led any evidence nor the defendant has adduced any evidence. It is evident that the trial Court has passed an order based on irrelevant materials. It is stated in the order that the plaintiff has filed the suit for declaration and possession, but the revenue records do not tally with the plaint schedule land particulars. If they are not tallying, then that matter can be considered by the Court at the time of trial and final disposal of