Smt. Jayamma & Ors. vs Lakshmamma & Ors.

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.

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.

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.

The learned counsel for the respondents submit that except Item No.72 of the plaint schedule, other properties are situated in Chintamani taluk.

Only for the purpose of filing a suit at Bengaluru, Item No.72 which is situated in Bengaluru has been included although the said property has been

in the name of the 2nd defendant. He refers to paragraph No.4 of the plaint to argue that in the said paragraph it has been clearly stated that the

plaintiffs are not aware of the relationship of 2nd defendant with the 1st defendant. This shows that they do not admit the relationship. Under these

circumstances the plaintiffs'' right to claim partition in respect of Item No.72 does not arise. They have to pay court fee according to Section 35(1)

of the Karnataka Court Fee and Suit Valuation Act in so far as Item No.72 is concerned.

It is well settled principle that only on the basis of the averments made in the plaint, the court has to take decision with respect to court fee

payable. The written statement shows that the defendants deny the joint possession. Just because such a plea is taken by the defendants it cannot

be said that the plaintiffs are required to pay court fee on the market value as provided under Section 35(1) of the Court Fee and Suit Valuation

Act. Here in this case, the plaintiffs have clearly stated that they are in joint possession of the suit properties. They may have stated that they do not

know the relationship of the 2nd defendant with the 1st defendant. It does not mean that the plaintiffs are not in joint possession. The trial court''s

observation that the daughters of defendant No.1 are married and living at different places cannot be construed as if they are excluded from the

joint family properties. In my opinion, the approach of the trial court requiring the plaintiffs to pay court fee according to Section 35(1) of the

Karnataka Court Fee and Suit Valuation Act is not correct, as in the plaint it is clearly stated that they are in joint possession. Section 35(2) of the

Act gets attracted, the impugned order cannot be sustained. Therefore appeal is allowed. Impugned order is set aside. However as has been held

by the trial court on 13.11.2014, the issue pertaining to court fee can be decided once again, based on evidence with regard to joint possession as

has been claimed by plaintiffs.