Thomas Rajan and Another vs Venkataramappa and Others

Ravi Malimath, J.—In the respondent''s suit for declaration and consequential reliefs, an application I.A. No. 4 was filed by the petitioners-defendants 2 and 3 under Order 7, Rule 11(a) and (b) read with Section 151 of the Civil Procedure Code, 1908 praying to direct the plaintiffs to pay the Court fee on the suit and for reliefs claimed therein as per law. The Trial Court by the impugned order rejected the application. Hence, the present petition.

Sri Puttige R. Ramesh, learned Counsel appearing for the petitioner contends that the impugned order is bad in law and liable to be set aside. He contends that the reasoning given by the Trial Court that since the very defendant had filed a suit and by placing reliance on the documents and some Court fee has been paid in the present suit, the application is rejected. The reasoning adopted by the Trial Court is erroneous and interference is called for.

Sri K. Raghavendra Rao, learned Counsel appearing for the respondents 1 to 5 contends that an application under Order 7, Rule 11(a) and (b) is not maintainable. Rule 11(a) is with regard to cause of action in the suit and Rule 11(b) is with regard to the adequacy of Court fee. Hence, the application under Order 7, Rule 11(a) and (b) is not at all maintainable.

On hearing both the Counsels, I am of the considered view that interference is called for, for the following reasons.

The Trial Court has misguided itself in holding that the defendant who filed IA. No. 4 was the plaintiff in the earlier suit who has paid a lesser Court fee than what has been paid in the present suit. The finding of the Trial Court on the issue is erroneous and therefore, liable to be set aside. The Trial Court declined to follow the judgment in the case of Thimmaiah Vs. Sreenivasa, , on the ground that issues are not framed in the present suit. In view of issue not being framed, the Trial Court should have appropriately considered I.A. No. 4 on that background should have framed an issue on adequacy of the Court fee in the suit. Failing to frame an issue with regard to adequacy of the Court fee is therefore unsustainable.

For the aforesaid reasons, the order dated 25-8-2007 passed on I.A. No. 4 of 2007 in O.S. No. 123 of 2007 by the Civil Judge (Senior Division) and Principal Judicial Magistrate First Class, KGF is set aside. The Trial Court is directed to frame an issue with regard to adequacy of the Court fee and pass appropriate orders within two weeks from the date of receipt of a copy of this order.

The writ petition is disposed off accordingly.