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CIRCUIT BENCH AT GULBARGA
N. KUMAR AND JAWAD RAHIM, JJ
Veeragouda and others - Appellant
Versus
Shantakumar @ Shantappagowda - Respondent
Writ Appeal No.219/2008(GM-CPC)
Decided on : 05th day of November. 2008
CODE OF CIVIL PROCEDURE, 1908 - Order 14, Rule 2 & Karnataka Court Fees and Suits Valuation Act, 1958, Section 11: [N. Kumar & Jawad Rahim, JJ] Trial of suits and issues including any issues as preliminary issue - Held, The Karnataka Court Fees and Suits Valuation Act, is a special law. It has received the assent of the President of India. It prevails over the general law. It is well settled when a special mode has been prescribed by a special law to do a particular job or to exercise the power in relation to subject thereunder, then special law has to prevail over the general law and the mode so prescribed by special law would have to be followed in respect of matters covered therein. Further, Section 11 of the Act, specifically deals with decision as to proper fee in Courts. It gives a special direction to the Court to decide the issue relating to valuation direction to the Court to decide the issue relating to valuation and Court fee, before recording of evidence on merits of the case, Therefore, in so far as the issues relating to valuation and Court fee are concerned, Order XIV Rule 2 of the CPC has to yield to Section 11 of the Act. Therefore, all questions arising with reference to valuation and Court fee payable shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. This aspect has been affirmed and re-affirmed in sub-Sections (2),(3) and (5)of Section 11. Therefore, the intention of the legislature is manifest. The words "shall be heard" repeatedly used in the aforesaid provisions, makes it clear that this provision is mandatory. In order to decide the said issue whether any evidence is to be recorded or not is immaterial. It is also immaterial to find out whether the issue regarding valuation and Court fee is a pure question of law or a mixed question of law and fact or a pure question of fact. When once a plea is taken that the suit has not been properly valued or that the fee paid is not sufficient, issue arising on such pleas shall be heard and decided before evidence is recorded on merits of the claim. Therefore, the issue regarding valuation of the suit and payment of Court fee shall be tried as a preliminary issue, if necessary, after recording of evidence and decide the said preliminary issue, before evidence is recorded affecting such defendant, on the merits of the claim.
KARNATAKA COURT FEES & SUITS VALUATION ACT, 1958 - Section 11: [N. Kumar & Jawad Rahim, JJ] Issue relating to Valuation of Suit and Court Fee payable on Suits - Decision as to proper fee in Courts - Duty of the Court - Held, From the provisions of Section 11 it is clear an obligation is cast on the Court even before ordering the plaint to be registered, to decide on the materials and allegations contained in the plaint, what is the correct fee payable on the plaint. The said decision however is subject to review, further review, corrections in the manner specified in the succeeding sub-sections. Sub-section (2) of Section 11 provides, a defendant may, by his written statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim, plead that the subject matter of the suit has not been properly valued or that the fee paid is not sufficient. If such a plea is taken, naturally the Court has to frame an issue. Sub-section (2) further provides all questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. In other words, it mandates, if an issue regarding Court fee is raised, the said issue shall be decided before recording evidence on other issues. Therefore, the mandate of law is very clear. No discretion is left to the Court for postponing the decision regarding issue of Court fee once such a plea is taken in the written statement or before the evidence is recorded.
KARNATAKA COURT FEES & SUITS VALUATION ACT, 1958 - Section 11: [N.Kumar & Jawad Rahim,JJ] Trial of suits and issues including any issues as preliminary issue - Held, The Karnataka Court Fees and Suits Valuation Act, is a special law. It has received the assent of the President of India. It prevails over the general law. It is well settled when a special mode has been prescribed by a special law to do a particular job or to exercise the power in relation to subject thereunder, then special law has to prevail over the general law and the mode so prescribed by special law would have to be followed in respect of matters covered therein. Further, Section 11 of the Act, specifically deals with decision as to proper fee in Courts. It gives a special direction to the Court to decide the issue relating to valuation direction to the Court to decide the issue relating to valuation and Court fee, before recording of evidence on merits of the case, Therefore, in so far as the issues relating to valuation and Court fee are concerned, Order XIV Rule 2 of the CPC has to yield to Section 11 of the Act. Therefore, all questions arising with reference to valuation and Court fee payable shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. This aspect has been affirmed and re-affirmed in sub-Sections (2), (3) and (5)of Section 11. Therefore, the intention of the legislature is manifest. The words "shall be heard" repeatedly used in the aforesaid provisions, makes it clear that this provision is mandatory. In order to decide the said issue whether any evidence is to be recorded or not is immaterial. It is also immaterial to find out whether the issue regarding valuation and Court fee is a pure question of law or a mixed question of law and fact or a pure question of fact. When once a plea is taken that the suit has not been properly valued or that the fee paid is not sufficient, issue arising on such pleas shall be heard and decided before evidence is recorded on merits of the claim. Therefore, the issue regarding valuation of the suit and payment of Court fee shall be tried as a preliminary issue, if necessary, after recording of evidence and decide the said preliminary issue, before evidence is recorded affecting such defendant, on the merits of the claim.
Kumar, J
This is a plaintiffs' appeal against the order of the learned single Judge who has directed the trial Court to try and decide issue No.3 relating to the court fee as a preliminary issue.
2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
3. The plaintiffs filed O.S. No. 213/2000 on the file of the Additional Civil Judge (Sr. Division), Raichur, for the relief of partition and separate possession of their 1/6'h share in the suit schedule property. They also sought for a decree for refund of 1/6" share in the compensation received by the defendant. The defendant filed his written statement contesting the claim. He contended that the compensation received by him in respect of the land acquired by the State Government was his exclusive property. He specifically pleaded that the valuation of the suit and payment of fixed Court fee under Section 35(2) is wrong, and insufficient. As per the claim, each plaintiff has to pay the required Court Fee under Section 21 of the Karnataka Court Fees and Suit Valuation Act. On the basis of the aforesaid pleadings, the Court below framed as many as 5 issues. The 3rd issue framed by the Court is as under:-
"Whether the defendant proves that the court fee paid is insufficient.
4. Thereafter, the defendant filed an application under Section 11 of the Karnataka Court Fees and Suits Valuation Act, 1958 (hereinafter for short referred to as 'the Act') to try and decide issue No.3 as a preliminary issue. The said application was rejected by the trial Court on the ground that the issue regarding court fee is a mixed question of law and fact and it cannot be treated and tried as a preliminary issue. Aggrieved by the said order the defendant preferred a Writ Petition before this Court. The learned single Judge after referring to sub-Section (2) of Section 11 of the Act, held that the aforesaid provision mandates all questions relating to proper valuation of the subject matter of the suit and payment of the court fee arising on the basis of the plaint and written statement shall be heard and decided before evidence is recorded affecting such defendant, on merits of the claim. Therefore, he held that the issue relating to Court Fee should be tried as a preliminary issue. Aggrieved by the said order, the plaintiffs are in appeal.
5. The learned counsel for the plaintiffs assailing the impugned order of the learned single Judge contended that, in view of the judgment of this Court in SMT. SUJATHA NARAYANA AND OTHERS vs SMT. LEELA RAMAKRISHNA AND OTHERS the issue regarding court fee has to be tried along with other issues and not as a preliminary issue and, therefore, he seeks for setting aside the said order.
6. In SMT. SUJATHA NARAYANA's case, the learned Single Judge of this Court has held as under:-
"Since the pecuniary jurisdiction of the City Civil Court is not questioned, the issue of the point of determination of Court Fees can be tried along with other issues. Further. Section 11 of the CFSV Act, 1958 was made keeping in view the pecuniary jurisdiction of the then Munsiff (now Civil Judge (JrDn.) and Civil Judge (now Civil Judge SrDn.). But, after the City Civil Court Act, 1979 came into force, Section 11 of the CFSV Act has not been amended. Therefore, there is no bar for the Court below to try the issue along with other issues. The burden is on the plaintiffs to establish that they have properly valued the suit and paid proper Court Fee. Under such circumstances, the petitioners filing an application for appointment of Commissioner and another application to determine the Court Fee payable before trying other issues is without any good ground. "
7. It is true that the City Civil Court at Bangalore has unlimited jurisdiction whereas the Civil Courts situated outside the Bangalore City are classified into Civil Judge, Junior Division and Civil Judge, Senior Division and pecuniary jurisdiction of those Courts have been clearly
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