This petition is directed against the impugned order

dated 03.03.2021 passed in O.S.No.17/2017 by the Senior

Civil Judge, Kumta, whereby the preliminary issue framed

pursuant to I.A.No.V in relation to payment of Court fee

was answered in favour of the respondent/plaintiff.

2.

Heard learned counsel for the petitioner and

learned counsel for respondent and perused the material

on record.

3.

A perusal of the material on record will indicate

that the respondent/plaintiff had instituted the aforesaid

suit for partition and declaration in relation to the suit

schedule immovable property. The petitioner is arrayed as

defendant No.2 in the said suit and at his instance a issue

relating the Court fee was framed and treated by the Trial

Court as a preliminary issue and answered in favour of

respondent/plaintiff

vide

impugned

order

dated

03.03.2021 by holding as under :

- 3 -

“ORDERS ON PRELIMINARY ISSUE

The following preliminary issue is framed in

view of I.A.No.5filed by the defendant no.2 under

Order XIV Rule 1 and 5 r/w Section151 of CPC which

reads as follows :-

1. Whether the Court fee paid by the plaintiff is

proper?

2. Heard both sides on the aforesaid preliminary

issue framed in respect of payment of Court fee. The

defendant no.2 has raised the said aspect of Court fee

and not chosen to adduce any evidence on the above

said preliminary issue. The plaintiff has also not

adduced any evidence in view of non adducing

evidence on behalf of defendant no.2 in this aspect.

3. The materials on record reveals that, the

plaintiff has filed the instant suit seeking relief of

declaration that the Sale Deed dated 9-1-2015

executed by defendant no.1 in favour of defendant

no.2 is not binding upon her and also sought relief of

partition and separate possession of her 2/3rd share

in the suit schedule property subject to metes and

bounds. The defendant no.2 in this case has

contended that, the Court fee paid by the plaintiff is

not proper. The materials on record also reveals that,

the defendant no.2 has previously filed I.A.No.III

under Order VII Rule 11(c) and (d) of CPC r/w

Section 11 of Karnataka Court Fees and Suits

Valuation Act, 1958 seeking rejection7of the plaint

- 4 -

and this Court has dismissed the said application and

against the said Order of dismissal, the defendant

no.2 has filed Civil Revision Petition No.10062/2018

before the Hon’ble High Court of Karnataka and the

same was disposed off wherein liberty is given to the

defendant no.2 to file necessary application to

consider the issue on Court fees as preliminary issue

and directed this Court to consider such issue without

being influenced by the order passed by the Hon’ble

High Court of Karnataka in the said Revision Petition.

Accordingly, the defendant no.2 has filed the said

application and the said application filed as per

I.A.No.V was partly allowed by this Court and the

above said preliminary issue is framed.

4. Heard both sides and perused the materials

on record.

5. The following points arose for consideration

of the Court :-

1. Whether the defendant no.2 proves that

the Court fee paid by the plaintiff is insufficient

and the preliminary issue has to be answered

in the negative?

2. If so, what order?

6. My answer to the above points are as under: -

Point No.1 : In the Negative,

Point No.2 : As per the final order, for the

following:-

- 5 -

REASONS

7. POINT NO.1: 3. The materials on record

reveals that, the plaintiff has filed the instant suit

seeking relief of declaration that the Sale Deed dated

9-1-2015 executed by defendant no.1 in favour of

defendant no.2 is not binding upon her and also

sought relief of partition and separate possession of

her 2/3rd share in the suit schedule property subject

to metes and bounds. The defendant no.2in this case

has contended that, the Court fee paid by the plaintiff

is not proper. The materials on record also reveals

that, the defendant no.2has previously filed I.A.No.III

un