Rajesh vs Kodandarama

S. Sujatha, J.—The order dated 1.3.2013 passed on I.A. No. III in O.S. 2211/2010 on the file of the III Addl. First Civil Judge and JMFC, Mysore dismissing the I.A. is challenged in this writ petition by the defendant/petitioner.

The facts in brief are as under:

"The petitioner is a tenant of a shop premises situated at No. 64, D Devaraja Urs Road, Mysore since September 2000 and is carrying on business therein in the name of "Sri Sumangali Silks". The respondent/plaintiff is the landlord of the premises. The petitioner/defendant has paid a sum of Rs. 8.00 lakhs towards premium/goodwill to the respondent at the time of taking the premises on lease on 28.9.2000. A receipt dated 28.9.2000 is said to have been executed by the respondent in favour of the petitioner in this regard acknowledging the receipt of the said amount of Rs. 8.00 lakhs. In addition to this, the petitioner has also paid another sum of Rs. 1,50,000/- to the respondent, which is refundable advance and the said premises was leased out to this petitioner on a monthly rent of Rs. 9000/-. O.S. No. 2211/10 was filed by the respondent, against the petitioner seeking ejectment of the petitioner from the suit schedule premises. Petitioner entered appearance and contested the case. Written statement was also filed. Primarily, petitioner took up the contention that the Civil Judge, Jr. Dvn., Mysore had no pecuniary jurisdiction to entertain the suit as the premium/goodwill of Rs. 8.00 lakhs paid besides monthly rent of Rs. 9000/-, is taken into consideration, as per Section 41 of the Karnataka Court Fees and Suits Valuation Act. The trial Court framed the preliminary issue on this point as under:

"Whether the defendant has proved that this Court has no pecuniary jurisdiction to entertain the present suit"? 3. At the time of enquiry on this preliminary issue, the respondent/plaintiff denied the execution of the receipt dated 28.9.2000. In view of the same, the petitioner filed I.A. III under Order XXVI Rule 9 read with Section 10(A) of CPC to appoint a handwriting expert as commissioner and to send the documents dated 28.9.2000 produced by the petitioner relating to the receipt of Rs. 8.00 lakhs for comparison of the disputed signatures of the respondent/plaintiff along with the admitted signature of the plaintiff and to have a report thereon so as to find out whether the disputed signatures appearing on the document are of the respondent/plaintiff or not. In the said application, the respondent filed objections. The trial Court after hearing both the parties, rejected I.A. III filed by the petitioner against which this writ petition is filed.

Heard learned counsel for the parties.

Learned counsel Sri Narayana Sharma appearing for the petitioner contended that the trial Court after having framed the preliminary issue on the pecuniary jurisdiction point, it was necessary for the issuance of commission and to send the document i.e., the receipt dated 28.9.2000 of Rs. 8.00 lakhs signed by the plaintiff/respondent to the handwriting expert for comparison of the disputed signature of the plaintiff with the admitted signature of the plaintiff as the execution of the same was disputed by the respondent during enquiry on preliminary issue. The determination of the pecuniary jurisdiction under Section 41 of the Karnataka Court Fees and Suits Valuation Act depends upon the said receipt of Rs. 8.00 lakhs executed by the respondent and in such circumstances, it is necessary to examine the genuineness of the document disputed by the plaintiff/respondent. Accordingly, sought for allowing the writ petition.

Per contra, learned counsel Sri Shabaresh appearing for the respondent supported the order passed by the learned trial Judge and argued that the petitioner while relying on the document i.e., the receipt of Rs. 8.00 lakhs, has not paid the sufficient court fee and penalty and without making such payment, the petitioner has no locus standi to seek for the opinion of the handwriting expert on the said document and accordingly, sought for dismissal of the writ petition.

Having heard the learned counsel for the parties and perusing the material on record, now the point that arises for consideration before this Court is, "Whether the trial Judge is justified in dismissing I.A. III filed by the petitioner seeking for appointment of Commissioner to get expert report by comparing the disputed signature of the plaintiff with the admitted signature"?

It is noticed that on the defence taken by the petitioner/defendant in the written statement, that the learned Civil Judge, Jr. Dvn., has no pecuniary jurisdiction, to entertain the present suit in view of the payment of the goodwill of Rs. 8.00 lakhs made to the plaintiff and the monthly rent of Rs. 9000/-, the trial Judge has framed the preliminary issue and posted the matter for enquiry on the preliminary issue. During the pendency of the said enquiry on the preliminary issue, the said receipt of goodwill/premium of Rs. 8.00 lakhs said to have been executed by the respondent was disputed by the respondent/plaintiff, the defendant/petitioner filed I.A. III to issue commission to the handwriting expert for comparison of the disputed signature of the plaintiff on the document dated 28.9.2000 with the admitted signature. This is the primary document which has to be proved by the petitioner to establish his case on the issue of pecuniary jurisdiction of the Court. The reason for rejecting the said application set-out by the trial court, that the defendant has not prayed for any counter claim based on the said document in order to decide the preliminary issue, is not justifiable and is not worthy of acceptance as it is the main document on which the petitioner is placing reliance to prove his case on the issue of lack of pecuniary jurisdiction of the Court. The prayer for counter claim in a written statement is not necessary, as it is the case of the petitioner that it is the goodwill paid towards taking of the premises on lease for the business which is not refundable.

The argument advanced on behalf of the learned counsel for the respondent that no sufficient stamp duty and penalty was paid by the petitioner on the said document dated 28.9.2000, is not the question before this Court while examining the order impugned herein in deciding the preliminary issue relating to pecuniary jurisdiction and no order was passed by the trial Court determining the stamp duty and penalty.

For the foregoing reasons, I am of the view that the order passed by the trial Judge is not sustainable. Accordingly, the order dated 1.3.2013 is set-aside.

In the result, writ petition is allowed. Consequently, I.A. III filed before the Court below is also allowed.