ORDER

The plaintiffs in OS No.3992 of 2007 is impugning the order dated 26.08.2017 on preliminary issue No.6 i.e., regarding correctness of the valuation made and sufficiency of the Court fee paid by the plaintiffs.

2. Heard Sri S V Giridhar, learned counsel for the petitioners. Respondent in spite of service of notice, remained absent. Perused the materials on record.

3. Learned counsel for the petitioners contended that the petitioners as plaintiffs before the Trial Court have filed the suit for declaration and possession. The Court fee was paid on the basis of the valuation slip, as required to be filed under Section 10 of the Karnataka Court Fees and Suit Valuation Act (for short 'the Act'). The defendant has appeared before the Trial Court and filed the written statement raising his contention including denying sufficiency of Court fee paid. Issues were framed and issue No.6 was regarding sufficiency of valuation and Court fee paid by the plaintiffs. However, the plaintiffs examined as PW1 in support of his contention and so also the defendant examined as DW1. At that stage, defendant filed the application to treat issue No.6 as preliminary issue as required under Section 11 of the Act. The Trial Court allowed the said application and treated issue No.6 as preliminary issue and passed the impugned order holding that the valuation made by the plaintiffs while filing the suit is not just and proper. Therefore, called upon the plaintiffs to pay additional Court fee of Rs.61,775/. Being aggrieved by the same, the plaintiffs are before this Court.

4. Learned counsel further submitted that the Trial Court has proceeded to consider issue No.6 as preliminary issue even though the matter was already proceeded and even the defendant was examined as DW1. The said procedure is against decision of the Full Bench of this Court in Venkatesh R Desai Vs Smt.Pushna Hosmani and Others1 . As per the decision of Full Bench, the said issue is required to be considered along with merits of the case, unless the proper valuation is required to be done to determine the pecuniary jurisdiction of the particular Court. In the present case, since the suit is before the City Civil Judge, Bengaluru, irrespective of the value of the suit, it would be filed before the City Civil Judge. Therefore, there cannot be any dispute regarding pecuniary jurisdiction of the Trial Court. Hence, the impugned order passed by the Trial ILR 2018 KAR 5095 Court suffers from illegality. Hence, he prays for allowing the petition.

5. The materials placed before the Court discloses that the plaintiffs filed the suit for possession of vacant land based on title. The plaintiffs have valued the suit as per the valuation slip and the same was disputed by the defendant. Issue No.6 was framed by the Trial Court as to whether the valuation made and Court fee paid by the plaintiffs is proper and correct. The impugned order passed by the Trial Court discloses that the trial was in progress based on the issues framed and at the advanced stage of trial, defendant requested to hold enquiry on issue No.6 in terms of Section 11 of the Act by treating the same as preliminary issue and accordingly, the Court passed the impugned order holding that the Court fee paid was not proper and called upon the plaintiffs to pay additional Court fee.

6. Now, the question arises as to whether the procedure adopted by the Trial Court is just and proper.

7. Learned counsel for the petitioners has placed reliance on the Full Bench decision of this Court in Venkatesh R Desai (supra). The Full Bench of this Court has considered the question referred to it which reads as under:

"As to whether, by virtue of Section 11 of the Karnataka Court Fees and Suits Valuation Act, 1958, when an issue of valuation and court fees is raised on the objections of the defendants, the same is invariably required to be tried as a preliminary issue and before taking evidence on other issues?"

8. The Full Bench considered various decision