MUNJANDIRA A. RAVI Vs. CHATHURANA K. SOMAIAH

JUDGEMENT

(1.) Petitioner being the plaintiff in the injunctive suit in O.S.No.146/2014, is knocking at the doors of writ court for laying a challenge to the order dated 07.11.2018, a copy whereof is at Annexure H whereby, the learned Senior Civil Judge, Madikeri, having allowed respondents' application, filed under section 11 of KCF & SV Act, 1958 (hereafter 1958 Act) has rejected petitioner's valuation slip and further, directed him to value the suit under section 30 of the Act and pay the court fee accordingly. After service of notice, the respondents having entered appearance through their counsel, resist the Writ Petition.

(2.) Learned counsel for the petitioner vociferously argues that the impugned order has an error of law of enormous magnitude on it's face, to the great prejudice of the plaintiff inasmuch as the court below proceeds on a wrong legal premises that the suit is founded on easement when it is not. In support of his submission, he banks upon the provisions of sections 4 & 7 of the Indian Easements Act, 1882 (hereafter 1882 Act) and a decision of Calcutta High Court in the case of Bengal Provincial Ry. Co. Ltd Vs. Rajanikantha De & Ors, 1936 AIR(Cal) 564. He further argues that even otherwise also, section 30 of the 1958 Act permits him to compute and pay the court fee on the amount at which he has valued the relief in the plaint. So arguing, he seeks allowing of the Writ Petition.

(3.) Learned counsel for the respondents/defendants per contra vehemently contends that going by the plaint averments and the relief claimed, the suit is founded on the easement as defined under section 4 of the 1882 Act; by no stretch of imagination, contra stand can be countenanced; permitting the petitioner to pay the court fee in terms of his own valuation slip amounts to permitting him to play fraud on the law relating to court fees and the same would cause a great loss to the Exchequer; he further contends that the court below having considered the matter in the right perspective, has made the impugned order which cannot be faltered either in law or on facts. So contending, he seeks dismissal of the Writ Petition.