SUGUNA Vs. V SUNIL KUMAR HOLLA

JUDGEMENT

(1.) MATERIAL facts of this case are thatr petitioners are the plaintiffs and respondents are the defendants in O.S.No.12/2008 pending in the Court of Senior Civil Judge at Kundapura. Suit was filed on 16.09.2008 to pass a decree for partition and allotment of separate possession of the plaintiffs' 3/5th share in the plaint schedule properties by metes and bounds and for awarding of the future mesne profits. Defendant No.1 filed written statement on 24.11.2008 denying the plaint averments and seeking dismissal of the suit. On 06.01.2009, plaintiffs filed I.A.2 for grant of permission to amend the plaint. The application having been dismissed on 17.12.2009, Writ Petition No.4823/ 2010 filed there - against was allowed on 22.04.2010 and the plaintiffs were permitted to amend the plaint on certain terms. By incorporating the amendment, the plaintiffs have sought for passing a decree for cancellation of a sale deed dated 27.01.1997 in respect of the plaint 'A' schedule properties and to declare a sale deed dated 10.11.2008 executed by the 1st defendant in favour of defendant Nos.2 and 3 in respect of the portions of plaint A' schedule properties, as null and void and not binding on their share. After incorporating the amendment a fresh valuation slip was filed. The relief of cancellation of registered sale deed dated 27.01.1997 which was for a total consideration of Rs.79,000/- was valued at Rs. 79,000/- and Court fee of Rs. 5,155/- was paid under S.38 of the Karnataka Court-Fees and Suits Valuation Act, 1958 ('the Act' for short). In so far as for the relief of declaration that the two sale deeds dated 10.11.2008 executed by defendant No.1 in favour of the defendant Nos.2 and 3 during the pendency of the suit as null and void and not binding on their share, the plaintiffs have valued the said relief at Rs.1,000/- under S.24(d) of the Act and Court fee of Rs. 25/- was paid for the said relief. Thus, the plaintiffs have paid additional Court fee of Rs.5,180/- on the additional reliefs incorporated in the plaint pursuant to the order dated 22.04.2010 passed in Writ Petition No.4823/2010. The 1st defendant has filed additional written statement on 13.07.2010 and contended that the valuation made by the plaintiffs is not proper and that sufficient Court fee has not been paid. Trial Court has raised an additional issue on 09.08.2010, whether the 1st defendant proves that the suit has not been properly valued and the Court fee paid is insufficient? Said issue was treated as preliminary issue. In the valuation slip dated 16.09.2008 annexed to the plaint, the total value of the suit properties was shown as Rs.44 lakhs and the 3/5th share of the plaintiffs as 26,40,000/-, for the purpose of pecuniary jurisdiction. The said valuation having been accepted and the plaintiffs having valued the relief for cancellation of the deeds under S.38 of the Act, applying the decision rendered in the case of Smt. Damegunta Rajeshwaramma and another Vs. Smt. Jayalakshmamma and others, (2010 (2) KCCR 1429) : ILR 2010 Kar 2288, the Trial Judge directed the plaintiffs to pay the Court fee on Rs.26,40,000/-. Trial Judge held that the Court fee paid is insufficient and additional issue No.1 was answered in the affirmative on 18.11.2011. Assailing the said order this writ petition has been filed.

(2.) SRI R.V. Jayaprakash, learned Advocate for the petitioners contended that the main relief sought for by the plaintiffs is for cancellation of registered sale deed dated 27.1.1997 said to have been executed by the plaintiffs and the 2nd defendant and their mother in favour of the 1st defendant in respect of plaint 'A' schedule property as vitiated by fraud, misrepresentation and mistake and to declare the said document as null and void and not binding on the share of the plaintiffs and to pass a decree for partition and separate possession entitling the plaintiffs to 3/5th share in all the suit properties. He submitted that the 1st defendant having sold plaint A schedule property in favour of defendants 2 and 3 during the pendency of the suit i.e., on 10.11.2008, the same is null and void and not binding on the shares of the plaintiffs. He submitted that the cancellation of sale deed dated 10.11.2008 by the 1st defendant in favour of defendants 2 and 3 being ancillary, the main relief has to be valued under sub-section (1) of S.38 of the Act i.e., on the amount of consideration shown in the registered sale deed dated 27.01.1997. In support of the contention, he relied on the decision in the case of Satheedevi Vs. Prasanna and another, 2010 AIR SCW 3754 and an order passed in the case of Smt. Anandamma and others Vs. Sharada alias Munithayamma, 2011(1) KCCR 52 and submitted that the learned Trial Judge has committed material irregularity and the impugned order being vitiated is unsustainable.

(3.) SINCE the matter pertains to payment of Court fee, by an order dated 13.04.2012, the petitioners were directed to implead the Sate of Karnataka represented by its Revenue Secretary and learned Additional Advocate General was directed to accept notice and appear in the matter. Sri Sajjan Poovaiah, learned Additional Advocate General appeared and submitted that S.38 of the Act is pari materia with S.40 of the Kerala Court Fees and Suits Valuation Act, 1959 (for short 'Kerala Act') and neither S.38 of the Act nor S.40 of the Kerala Act refer to 'market value'. A written submission dated 21.03.2013 was filed and he submitted that wherever the legislature has intended that market value be applied, it has expressly stated so. He submitted that since S.38 of the Act relating to suits for cancellation of decrees etc., does not provide for payment of Court fees on market value, in as much as it provides for value of the property for which the document was executed, the value denoted in the document should govern the process of calculation of Court fee.