MRIDULLA J RAO Vs. NIRANJAN V JOSHI

JUDGEMENT

(1.) The 3rd respondent herein-Sujatha instituted O.S. No. 25/2008 in the Court of the Civil Judge [Sr. Dn.], Mangalore [D.K], claiming a decree for partition and separate possession of her 1/10th share in the suit schedule properties. Respondent Nos. 1, 2, 4 to 9 and the petitioner are the defendants in the said suit.Plaintiff-Sujatha had averred in the plaint that the relief in the suit for the purpose of court fee and jurisdiction is valued at Rs. 200-00 under Section 35(2) Article I of Schedule-I of the Karnataka Court Fees and Suits Valuation Act [hereinafter called as "the Act" for short]. She also filed a valuation slip. In Clause 3(d) of the Valuation Slip, she stated "Valuation arrived on the relief is valued at Rs. 6,90,023-00 relating to her 1/10th share. As the maximum court fee under Section 35(2) of the Act was Rs. 200-00 and as the Civil Judge [Sr. Div.] had jurisdiction to entertain suits of the value exceeding Rs. 5,00,000-00, the proceedings continued and ultimately, the suit came to be decreed granting the relief of 1/10th share in the plaint schedule properties to the plaintiff, defendant Nos. 1, 3 and 8. Accordingly, preliminary decree was drawn. The valuation slip annexed to the plaint was also incorporated as part of the decree. Aggrieved by the Judgment and Decree, defendant Nos. 2 and 9 preferred an appeal in R.A. No. 119/2011. During the pendency of the said appeal before the first appellate Court i.e., the District Judge, Mangalore, the petitioner herein, who is the 8th defendant in the suit and respondent No. 8 in the appeal filed a memo dated 06.03.2012, a copy of which is produced at Annexure-"A", alleging that the suit has been valued in the plaint at Rs. 69,00,225-00 and fixed court fee of Rs. 200-00 was paid under Section 35(2) of the Act and if the value of the property exceeds Rs. 10,00,000-00, an appeal shall lie to the High Court and therefore, she submitted that the learned District Judge, before whom the appeal is filed has no jurisdiction to entertain the appeal and therefore, sought for dismissal of the appeal, as not maintainable. The trial Court heard on the memo and rejected the same vide its Order dated 09.03.2012. Aggrieved by the said Order, the present writ petition has been filed.

(2.) I have heard the learned counsel for the parties.

(3.) Admittedly, there is an averment in the plaint that the suit properties are in joint possession of the parties. Therefore, it is Section 35 (2) of the Act, which is applicable. So far as the question of fee payable on the said suit, it provides that if the value of plaintiff's share is Rs. 3,000-00 or less, the court fee is Rs. 15-00, if the value is above Rs. 3,000-00 and not more than Rs. 5,000-00, the court fee is Rs. 30-00 and if the value is above Rs. 5,000-00 and below Rs. 10,000-00, the court fee is Rs. 100-00 further if it is above Rs. 10,000-00, maximum court fee payable is Rs. 200-00 - So far as payment of the court fee is concerned, there is no dispute between the parties as the value exceeds Rs. 10,000-00 and irrespective of the value of the suit properties or the share in the suit properties, as it exceeds Rs. 10,000-00, the Court fee paid is not questioned.