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IN THE HIGH COURT OF KARNATAKA

DHARWAD BENCH

DATED THIS THE 30^TH DAY OF JULY, 2021

BEFORE

THE HON’BLE MR. JUSTICE P.N.DESAI

R.F.A.NO.2137/2006 (DEC.)

BETWEEN:

THAVARAGERE THIMMAPPA,

S/O THAVAREGERE NARAYANAPPA,

AGED ABOUT 37 YEARS,

OCC: AGRICULTURIST,

R/O KUDUTHINI VILLAGE,

TQ: & DIST: BALLARI, PIN-583121.

...APPELLANT

(BY SHRI B. CHIDANANDA, ADVOCATE.)

AND:

1.

SMT NEELAMMA W/O T.NARAYANAPPA,

AGED ABOUT 65 YEARS, HOUSE WIFE

R/O PATTANA SERAGU VILLAGE (POST)

TQ: & DIST: BALLARI, PIN-583125.

2.

SMT.SHARADAMMA W/O SHIVAPPA,

AGED 40 YEARS,

R/O CHITWADIGI, NEAR RAHIMAN MASJID,

HOSAPETE, DIST: BALLARI, PIN-583123

3.

SMT.MALLAMMA W/O HONNAPPA,

AGED 25 YEARS,

R/O KURUGODU VILLAGE,

TQ: & DIST: BELLARY, PIN-583128

4.

SMT. RATHNAMMA W/O MURTHY,

AGED 30 YEARS,

R/O PATTANA SERAGU VILLAGE (POST)

TQ: & DIST: BALLARI, PIN-583129

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5.

SMT. RAMAKKA W/O BHEEMAPPA,

AGED 60 YEARS, HOUSE WIFE,

R/O PATTANA SERAGU VILLAGE (POST)

TQ: & DIST: BALLARI, PIN-583129

6.

G. SHIVASHANKAR S/O DODDAPPA,

AGED 45 YEARS, AGRICULTURIST,

R/O PATTANA SERAGU VILALGE (POST)

TQ: & DIST: BALLARI, PIN-583128

…RESPONDENTS

(BY SHRI S.P.KULKARNI, ADVOCATE, FOR R1-R4;

R.5 – NOTICE SERVED;

SHRI J.BASAVARAJ, ADVOCATE, FOR R6.)

THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96

OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET AISE

THE ORDER DATED 01.09.2006, DISMISSING THE I.A.NO.2 AND

REJECTING THE PLAINT FILED IN O.S.83/2004, PASSED BY THE

LEARNED

ADDL.

CIVIL

JUDGE

(SR.DN.),

BALLARI,

AND

CONSEQUENTLY TO SET-ASIDE THE ORDER DATED 27.09.2005,

PASSED ON ISSUE NO.5 IN THE SAID SUIT AND FURTHER TO

DIRECT THE TRIAL COURT TO RESTORE THE SUIT O.S.83/2004 TO

ITS ORIGINAL FILE.

THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,

THE COURT DELIVERED THE FOLLOWING:

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.

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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

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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 application-I.A.No.2 for

review of the said order. The trial court not only dismissed

the said application-I.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