Ramrao vs Mallayya and Others

L. Narayana Swamy, J.—Defendant filed I.A. No. 3 under Order 14 Rule 5 read with Section 151 CPC to frame the proposed issues as mentioned in the application and the plaintiffs filed I.A. No. 4 under Order 8 Rule 9 read with Section 151 of CPC seeking permission to file rejoinder to the written statement filed by the defendant No. 1. The Court below has rejected I.A. Nos. 3 and 4 and hence the plaintiffs and the defendant have filed these separate writ petitions.

The petitioner-defendant in W.P. No. 202746/2014 who had filed I.A. No. 3 submits that when an application is filed to frame an issue regarding the Court fee, which is the subject matter of jurisdiction of the Court, the Court should have framed preliminary issue and it is the duty of the Court under Section 11(2) of the Karnataka Court-Fees and Suits Valuation Act, 1958 (for short the ''Act'') to examine as to whether it has got jurisdiction on Court fee. Without examining the same, the Trial Court has rejected I.A. No. 3 and the same is error of law. Hence, he prays to set aside the order passed on I.A. No. 3.

Learned counsel for the petitioners-plaintiffs in W.P. No. 202867/2014, who has filed I.A. No. 4 seeking permission to file rejoinder to the written statement filed by the defendant, submits that the filing of such application is the right of the parties. It is a subsequent pleading, hence the Court below should not have rejected the same. In support of his submission, he relied on the judgment of the Apex Court in the case of Pratima Chowdhury Vs. Kalpana Mukherjee and Another, .

I have heard both sides. The reasons assigned by the Trial Court for rejecting I.A. No. 3 filed for framing of an issue is an error of law. As per Section 11(2) of the Act and even otherwise, it is the duty of the Court below to satisfy itself with regard to its jurisdiction on the territory, monetary and also under the Court fees Act to decide by framing a preliminary issue. The defence taken by the defendant is that the land in question is a NA land and the plaintiffs have not properly valued the suit property and not paid sufficient Court fee. When such specific contention has been taken by the defendant, the Court below should have framed preliminary issue with regard to Court fee and non-framing of such issue as a preliminary issue. Hence, W.P. No. 202746/2014 is allowed. The order passed on I.A. No. 3 is set aside. I.A. No. 3 is allowed. The Court below is directed to frame an issue as a preliminary issue with regard to Court fee and suits valuation.

In respect of I.A. No. 4 filed by the plaintiffs seeking permission to file rejoinder to the written statement, the learned Judge has extracted Order 8 Rule 9 of CPC which reads as "no pleading subsequent to the written statement of a defendant other than by way of defence to a set-off [or a counter claim] shall be presented except by the leave of the Court. In view of this provision, I am of the opinion that the learned Judge has rightly referred the provisions for rejecting the same. If it is the case of the plaintiffs that by virtue of filing of written statement by the defendant, the prayer in respect of extent of land gets altered, it is open for him to file necessary application under Order 6 Rule 17 of C.P.C. When such specific provision is available, I do not find any good reason to interfere with the order passed by the Trial Court on I.A. No. 4. Accordingly, W.P. No. 202867/2014 stands disposed of.