Writ Petition No. 30172/2012 (GM-CPC). Case: Manipal Academy of Higher Education Vs K. Jayavantha Bhakta. High Court of Karnataka (India)
| Case Number | Writ Petition No. 30172/2012 (GM-CPC) |
| Counsel | For Appellant: Manmohan P.N., Adv. and For Respondents: B.V. Krishna, Adv. |
| Judges | B. Manohar, J. |
| Issue | Karnataka Court-fees and Suits Valuation Act, 1958 - Sections 21, 35(1), 35(2) |
| Judgement Date | November 27, 2014 |
| Court | High Court of Karnataka (India) |
Order:
B. Manohar, J.
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The petitioner is the 7th defendant in O.S. No. 143/1996 on the file of the Principal Civil Judge (Sr.Dn.), Udupi, being aggrieved by the order dated 21.05.2012 made on the preliminary issue No. 5 filed this writ petition.
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The respondents 1 to 3 herein filed O.S. No. 143/196 seeking for partition and separate possession of 3/8th share in plaint 'A schedule property and also for other reliefs. In the plaint it was contended that the suit schedule property is the ancestral property of Kalasanka Manjunath Bhakta. Plaintiffs and defendants 1 to 5 are the children of the said Kalasanka Manjunath Bhakta. They are entitled for their share in the joint family properties. The plaintiffs had paid the court fees under Section 35(2) read with Section 21 of the Karnataka Court fees and Suit Valuation Act, 1958 (for short herein after referred to as "Act"). The 7th defendant/respondent raised an objection regarding payment of the court fees contending that the 7th respondent is in possession of the property. The plaintiffs are not in possession and hence the court fees has to be paid under Section 35(1) of the Act and the court fees as paid by the plaintiffs is not in accordance with law. In view of the said contention, the trial court raised the issue No. 5 i.e., with regard to the court fees as a preliminary issue. After considering the arguments of the parties, the trial court found that the court fees paid on the plaint is in accordance with law and held that in a suit for partition, both the plaintiffs and defendants are in possession of the property and are in joint possession of the property, the court fees has to be paid under Section 35(2) and answered the preliminary issue in favour of the plaintiffs. Being aggrieved by the order made on preliminary issue No. 5, the 7th defendant has preferred this writ petition.
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Sri. P.N. Manmohan, learned counsel appearing for the petitioner contends that the order passed by the trial court on the preliminary issue is contrary to law. The first defendant in the suit alienated the property in favour of the sixth defendant. The sixth defendant in turn sold the property to the seventh defendant and seventh defendant is in possession of the property, since the plaintiffs are not in possession they have to pay the court fees under Section 35(1) of the Act. The trial court committed an error coming to the conclusion that court fees paid under Section 35(2) of the Act is in accordance...
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