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2024 Supreme(Online)(Kar) 45345
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF MARCH, 2024 BEFORE THE HON'BLE MR. JUSTICE S.R.KRISHNA KUMAR WRIT PETITION No.7354 OF 2024 (GM-CPC)
BETWEEN:
1. SALOME FRANCIS, S/O LATE R. FRANCIS, AGED ABOUT 94 YEARS, 2. J. A. M. SELVAM, S/O LATE R. FRANCIS, AGED ABOUT 66 YEARS, 3. MARY JOSHPHINE SUMITHRA, D/O LATE R. FRANCIS, AGED ABOUT 64 YEARS, ALL THE ABOVE ARE SENIOR CITIZEN ALL THE ABOVE RESIDING AT Digitally signed MUNICIPAL No.2/3, SITUATED AT ‘L’
by R No.7 STREET, ASHOK NAGAR MANJUNATHA BANGALORE-560025.
Location: HI GH COURT OF …PETITIONERS KARNATAKA (BY SRI. SURESH S. LOKRE, SENIOR COUNSEL FOR SRI SHRAVAN S. LOKRE., ADVOCATE)
AND:
1. PETER SANTHOSH FRANCIS, S/O LATE R. FRANCIS, AGED ABOUT 51 YEARS, R/AT No. 28, 11TH MAIN, 3RD CROSS, 4TH C BLOCK, KORAMANGALA, BANGALORE-560034.
2. MARY SABITHA, D/O LATE R. FRANCIS, AGED ABOUT 55 YEARS, RESIDING AT MUNICIPAL No.2/3, SITUATED AT L No.7TH STREET, ASHOK NAGAR, BANGALORE-560025. 3. MARY SUGANTHI, D/O LATE R. FRANCIS, AGED ABOUT 53 YEARS, R/AT MUNICIPAL No. 17, SITUATED AT PUSHPAVENI LAYOUT, MARUTHI NAGAR, KAIKONDRANAHALLI, SARJAPUR ROAD, BANGALORE-560035.
4. MARIA THOMAS SAMPATHRAJ, S/O LATE R. FRANCIS, AGED ABOUT 61 YEARS, RESIDING IN A PORTION OF No. 28, 11TH MAIN, 3RD CROSS, 4TH C BLOCK, KORMANGALA BANGALORE-560034.
…RESPONDENTS (NOTICE TO RESPONDENTS DISPENSED WITH VIDE ORDER DATED 11.03.2024)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDER PASSED IN O.S.No.25898/2022 BY THE XXVIII ADDITIONAL CITY CIVIL JUDGE, CCH-29, MAYO HALL, BENGALURU ON 30.01.2024. DIRECTIONS TO CONTINUE THE SUIT WITH ITS COUNTER CLAIM AS PRAYED FOR IN O.S.No.25898/2022 PENDING ON THE FILE OF THE XXVIII ADDITIONAL CITY CIVIL JUDGE, CCH-29, MAYO HALL, BENGALURU.
THIS WRIT PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is directed against the impugned Order dated 30.01.2024 passed in O.S.No.25898/2022 by the XXVIII Additional City Civil and Sessions Judge, Mayo Hall Unit, Bengaluru.
2. Heard Sri Suresh S.Lokre, learned Senior Counsel for the petitioners.
3. For the Order proposed, notice to respondents is dispensed with.
4. A perusal of the material on record will indicate that respondent No.1/plaintiff instituted the aforesaid suit against the petitioners/defendants and other defendants for partition and separate possession in relation to suit schedule immovable properties. In the said suit, apart from disputing various claims of the plaintiff, petitioners/defendants also put forth a counter claim for mandatory injunction directing removal of respondent No.1/plaintiff along with movable articles from suit ‘A’ schedule property.
5. The petitioners/defendants filed an application I.A.No. 2/2023 for rejection of plaint under Order VII Rule 11(a) and (d) of the Code of Civil Procedure. The said application having been rejected by the Trial Court vide Order dated 27.07.2023, petitioners preferred CRP No.567/2023 which was allowed by this Court on 19.12.2023, as a consequence of which, plaint filed by the respondent No.1/plaintiff stood rejected. However, counter claim put forth by the petitioners continue to subsist and is pending in terms of Order VIII Rule 6A and 6C of the Code of Civil Procedure.
6. A perusal of the counter claim sought for by the petitioners/ defendants and valuation slip will indicate that petitioners/ defendants have filed counter claim for mandatory injunction under Section 26(c) of the Karnataka Court Fee and Suits Valuation Act, 1958, and appropriate Court Fee has been paid on the counter claim.
7. It is the grievance of the petitioners that despite a counter claim seeking only mandatory injunction, the Trial Court has proceeded to pass the impugned order erroneously directing the petitioners to file fresh valuation slip, on the counter claim which is erroneous in law and same deserves to be set aside.
8. I find considerable force in the submission of the learned Senior Counsel for petitioners. A perusal of the counter claim of the petitioners for mandatory injunction and accompanying valuation slip will clearly indicate that relief sought for is one for mandatory injunction by valuing the same under Section 26(c) of the Karnataka Court Fee and Suits Valuation Act, 1958, and court fee has been paid in accordance with the said provision.
9. Under these circumstances, I deem it just and proper to set-aside the impugned Order and direct the Trial Court to continue with the counter claim and dispose of the same in accordance with law.
10. In the result, the petition is hereby allowed. The impugned Order is hereby set-aside.
11. The Trial Court is directed to proceed with the counter claim in accordance with law, without calling upon or insisting the petitioners to file fresh valuation slip or to pay additional court fee on the counter claim.
12. Liberty is reserved in favour of the respondents to file their written statement/reply/rejoinder to the counter claim.
