ROSALINE SIROMANI Vs. FATHIMA BI

JUDGEMENT

(1.) Defendants 4, 6, 22, 41, 42, 44, 45, 48, 50, 54 to 58 in OS.No.10469/1988 on the file of XXVIII Additional City Civil Judge, Bengaluru, have come up in this revision petition impugning the order dated 4.3.2015 in rejecting the un - numbered application filed under Order 7 Rule 11(b) of CPC filed on 6.1.2015.

(2.) Admittedly, the suit in OS.No.10469/1988 was initially filed for the relief of permanent injunction. It is stated that said suit was subsequently converted from a suit for permanent injunction to that of declaration of title and other consequential relief. The property involved is said to be converted land, wherein constructions have come up. In that view of the matter, the defendants have taken a specific defence in the written statement at the first instance that the suit is not properly valued. That the suit which was instituted for the relief of permanent injunction on payment of court fee of Rs.100/ - cannot be continued with the same and in view of amendment to the relief sought in the plaint proper court fee is required to be paid. It is seen that infact the court itself should have exercised diligence to collect the requisite court fee before taking up the amended suit for consideration. However, it is seen that the court below was not diligent, it has permitted the plaintiffs to proceed with the amended plaint for recording of evidence. It is only at the stage of defendant's evidence the aforesaid application is filed.

(3.) Though it may appear that application by the defendants is filed with an intention to drag the proceedings, this Court is not inclined to go further to know the intention of the parties in filing the said application. It would suffice to take into consideration whether the suit which is subsequently converted for the relief of permanent injunction to that of declaration of title and consequential relief, whether proper court fee as required under the Karnataka Court Fees and Suits Valuation Act, 1958, is paid. As could be seen from the records the court fee on amended prayer is not paid. However, matter is proceeded with for a larger relief by taking the court fee for smaller relief with which it was instituted. The said position cannot be continued. The reason given by the learned judge of the court below in stating that issue of court fee can be considered at a later stage is a misconceived opinion, inasmuch as the suit should not have been proceed with for the larger relief of declaration unless the requisite court fee is paid. Therefore, the order impugned dated 4.3.2015 on unnumbered application filed under Order 7 Rule 11(b) of CPC does not sustain in the eyes of law.