UMAKANTH M Vs. M MALATHI

JUDGEMENT

(1.) This revision by the defendant is directed against the order passed on I A IV. I.A.IV was filed after the case had been adjourned on two earlier occasions to record evidence. Prayer in I.A.IV was that an issue regarding court fee had been framed and therefore the Court should decide that issue first and then proceed with the matter.

(2.) Subsequent to the filing of I.A.IV by defendant No. 4, suit was adjourned several times for filing of counter to I.A.IV. But ultimately the matter was disposed of on 16-12-1987 by the trial court rejecting I.A.IV on the ground that it is mixed question of fact and law and it shall be heard along with the main case.

(3.) Normally having regard to the mandatory provision of Section 11 (2) of the Karnataka Court Fees and Suits valuation Act if there is a plea by the defendant in his written statement that the court fee paid is insufficient, then that should be tried as a preliminary issue as that subsection directs and as held by this Court in the case of Umarabba,. v. Pathuni And Others 1984(2), Kar.L.J. Page 97. But on the facts of the instant case, it is seen that the 4th defendant never pleaded the question of court fee in his written statement. Therefore, in so far as he is concerned, sub-section (2) of Sectibn 11 is not attracted. 3. A perusal of the plaint copy produced by the petitioner's counsel shows that the suit is one for partition and plaintiff has claimed 1/5th share in the suit schedule property, and division by metes and bounds and possession with a consequential prayer that any encumbrance or charge created on the property would not be binding on her share and has paid the prescribed fixed court fee under Section 47 of the Act.