SMT. JAYAMMA AND ORS. Vs. LAKSHMAMMA AND ORS.

JUDGEMENT

(1.) Heard the appellants' counsel and the respondents' counsel at the time of admission. This appeal is preferred by the plaintiffs challenging the order dated 09.12.2014 on I.A.43 in O.S.No.338/2002 on the file of City Civil Court, Bengaluru. The defendants made this application under Order 47, Rule 1 CPC r/w section 151 and 114 of CPC to review the order dated 13.11.2014.

(2.) On 13.11.2014, the trial court passed an order that Issue No.5 pertaining to court fee would be taken up for consideration at the time of final disposal of the case. This order was sought to be reviewed by filing an application. The trial court allowed this application by holding that the defendants have denied the title of the plaintiffs and their possession over suit property. The plaintiffs have not placed any material to show that they are in joint possession and enjoyment of the suit properties. Referring to Hindu Succession Act, the trial court further held that the plaintiffs were excluded from the possession of the suit properties immediately after their marriage and this fact becomes evident from the address of the plaintiffs given in the cause title of the plaint. Therefore the case of the plaintiffs does not fall within the ambit of the Section of the 35 (1) of the Court Fee and Suit Valuation Act. The trial court directed the plaintiffs to value the suit properties according to Section 35(1) of the Court Fee and Suit Valuation Act.

(3.) The learned counsel for the appellants argues that the order impugned is bad in law and that it is clearly stated that the plaintiffs are in joint possession of the suit properties. The trial court having once held that the issue pertaining to court fee would be considered along with the merits of the case, it could not review its own order upon an application made by the defendants. The plaintiffs have stated that one property of the suit properties has been illegally held by the 2nd defendant. According to the plaintiffs all these properties belonged to the 1st defendant and the plaintiffs being the wife and children of 1st defendant are entitled to claim properties. They have stated about joint possession and therefore Section 35(2) of the Karnataka Court Fee and Suit Valuation Act gets attracted.