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Shrinivas Kenheri Kulkarni Vs. Subbappa Mehetru Nidagalkar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Judge
Reported inAIR1977Kant78; ILR1976KAR1755; 1976(2)KarLJ202
ActsKarnataka Court-fees and Suits Valuation Act, 1958 - Sections 7(2) and 26
AppellantShrinivas Kenheri Kulkarni
RespondentSubbappa Mehetru Nidagalkar and ors.
Appellant AdvocateW.K. Joshi, Adv.
Respondent AdvocateB.V. Heddur Shetty and ;Annedenayya Puranik, Advs.
Excerpt:
.....of such a suit for the purpose of court-fee ought to be made in accordance with section 7(2) of the court-fees act, as clearly enjoined in the opening clause of that section which expressly makes reference to a suit for land falling under section 26(a) of that act. 12. as a result of the foregoing, this appeal clearly deserves to succeed and is accordingly allowed......the learned high court government pleader, contended that notwithstanding the fact that the suit land was assessable to land revenue and, therefore, liable for payment of court-fee only on the basis of valuation made in accordance with section 7(2)(b) of the court-fees act, having regard to the provisions of section 50 of that act, he would not be entitled to separately value the same for the purpose of' jurisdiction. on behalf of the appellant, sri w. k. joshi, learned counsel placing reliance on the provisions of sections 7(2), 26(a) and the proviso to section 50 of the court-fees act, contended that such separate valuation for the purpose of jurisdiction was quite justified in the, facts and circumstances of the case.4. in the case of nagaraj v. nanjappa, 1972 (1) mys lj 106 =.....
Judgment:

Venkataswami, J.

1. This appeal under Section 43(1) of the Code, of Civil Procedure is by the plaintiff in O. S. No. 24/73 on the file of the Principal Civil Judge, Belgaum. He is aggrieved by an order made therein directing the return of the plaint for presentation to the proper court having jurisdiction to try the suit.

2. The material facts leading upto the appeal, briefly, are as follows:-

The appellant filed the suit for a decree of permanent injunction on the ground that the respondents herein had denied his title to the suit property an agricultural land separately numbered and assessed for the purpose of land revenue. He valued the suit for the purposes of court-fee on the basis of the provisions of Section 7(2)(b) of the Karnataka Court-fees and Suits Valuation Act, 1958 (Court-fees Act, for short), at Rs. 251-69 P. and paid court-fee thereon. But, for the purpose of jurisdiction, the market value- of the land was stated as Rs. 54,000/-. In view of the latter valuation, the suit came to be instituted in the Court of the Civil Judge. On behalf of the respondents (defendants) this valuation on the basis- of the market value was conceded as correct, but it was contended, inter alia, that having regard to the provisions of' the Court-fees Act such separate valuation for the purpose of court-fee and jurisdiction was impermissible and that such valuation ought to be the same for both, and in that view, the suit would not be maintainable as instituted in the Court of, the Civil Judge. The learned. Civil Judge accepted this plea of the respondents, treating the issue as preliminary, and ordered the return of the plaint. Hence the appeal by the plaintiff.

3. On behalf of the State, Sri A. Puranik, the learned High Court Government Pleader, contended that notwithstanding the fact that the suit land was assessable to land revenue and, therefore, liable for payment of court-fee only on the basis of valuation made in accordance with Section 7(2)(b) of the Court-fees Act, having regard to the provisions of Section 50 of that Act, he would not be entitled to separately value the same for the purpose of' jurisdiction. On behalf of the appellant, Sri W. K. Joshi, learned counsel placing reliance on the provisions of Sections 7(2), 26(a) and the Proviso to Section 50 of the Court-fees Act, contended that such separate valuation for the purpose of jurisdiction was quite justified in the, facts and circumstances of the case.

4. In the case of Nagaraj v. Nanjappa, 1972 (1) Mys LJ 106 = (AIR 1972 Mys 163) to which attention was invited by Sri Puranik, the Court was, concerned with a suit for injunction calling under Section 26(c) of the Court-fees Act. The Court, therefore, in considering a question similar to the one raised in the case on hand, held that such separate, valuation for the purpose of court-fee and jurisdiction was not permissible. But in doing so, it has been observed clearly that the suit therein was not one falling within the purview of Section 7(2) of that Act. The position in the instant case is that it is a suit plainly falling under Section 26(a) and, therefore, liable to be valued for the purpose of court-fee in accordance with the provisions of Section 7(2) of the Act. Hence this decision, in our view, does not directly touch the issue before us.

5. In the case of Subrao Ramba Ravalu Kedari v. Kallappa Nana Kadapure, 1972 (1) Mys LJ 180 = (AIR 1972 Mys 242) a Division Bench of the Court had occasion to briefly refer to the effect of the proviso to S. 50(1) of the Court-fees Act. In that case a contention had been urged that in view of the proviso to Section 50(1) of the Court-fees Act, two separate valuations regarding the market value of land which is the subject-matter of the suit was permissible, that is, one for the purpose of court-fee and the other for jurisdiction. In that context, it was observed thus :

'............. In order to understand the Proviso (to Section 50(1) ), we have got to read the provision to which it is attached as a Proviso. Sub-section (1) of S. 50 deals with cases for which no specific provision is made in any other part of the Act, or in any other law. If there is no other provision, then according to Section 50(1) the value for purposes of court-fee would be the value for the purpose of jurisdiction. It is no doubt true that the Proviso controls sub-section (1) of S. 50 to the extent that the suit in question is one to which Section 7(2) of the Act is attracted. A suit falling under Section 26(c) of the Act is not one to which Section 7(2) is applicable. It is clear from the opening clause of Section 7(2) ...........'

6. It seems clear from the above enunciation, with which we are in respectful agreement, that such separate valuation for court-fee and jurisdiction would be permissible in cases of suits failing within the purview of Section 7(2) of the Court-fees Act.

7. Section 50(1) of the Court-fees Act reads :

'In a suit as to whose value for the purpose of determining the jurisdiction of courts, specific provision is not otherwise made in this Act or in any other law, value for that purpose and value for the-purpose of computing the fee payable under this Act shall be the same:

Provided that notwithstanding anything contained in sub-section (2) of S. 7, the value of land specified in clause (a), (b) or (c) of the said sub-section shall, for purposes of determining the jurisdiction of courts, be the market value of such land.'

8. It is manifest from the proviso that in spite of the separate method for valuation of the land for the purposes of court-fee, as provided for in Section 7(2) of the Court-fees Act, for the purpose of jurisdiction such land shall have to be valued in accordance with its real market value.

9. It is further clear from the opening clause of Section 7(2) that as regards suits falling only suits which answer the description of any of those specified in clause (a) thereof would be entitled to the concession provided in Section 7(2) as regards the valuation for the purpose of court-fee. The relevant portions of the said provisions may be set out for convenience of reference.

10. The opening clause of S. 7(2) of Court-fees Act reads:

'The market value of land in suits falling under Sections 24(a), 24(b), 26(a), 27, 28, 29, 31, 35(1), 35(2), 35(3), 36, 38, 39 or 45 shall be deemed to be ...........'

(rest not set out as unnecessary)

'26. Suits for injunction - In a suit for, injunction-

(a) Where the relief sought is with reference to any immovable property, and

(i) Where the plaintiff alleges that his title to the property is denied, or

(ii) Where an issue is framed regarding the plaintiff's title to the property,

fee shall be computed on one half of the market value of the property or on rupees one hundred, whichever is higher; ...........'

(rest not set out as unnecessary)

11. In the case on hand, it is undisputed that the suit was one falling under Section 26(a) of the Court-fees Act, in that it was a suit for a decree of permanent injunction based on a denial of title. It is also not in dispute that the valuation of such a suit for the purpose of court-fee ought to be made in accordance with Section 7(2) of the Court-fees Act, as clearly enjoined in the opening clause of that section which expressly makes reference to a suit for land falling under section 26(a) of that Act. In this state of affairs, it follows from the foregoing discussion that in a suit for permanent injunction falling under Section 26(a) of the Court-fees Act, where the subject-matter is land failing within the scope and purview of any of the clauses (a), (b) or (c) of Section 7(2) of that Act, the plaintiff would be bound to value the same for the purpose of jurisdiction on the basis of its actual market value, instead of what may by regarded as its 'deemed value' as contemplated by the provisions of Section 7(2) of the said Act. The order in appeal, therefore, cannot be sustained.

12. As a result of the foregoing, this appeal clearly deserves to succeed and is accordingly allowed. The order impugned herein is set aside. The matter stands remitted to the court below with a direction that it should proceed to entertain the plaint and dispose of the suit in accordance with law. There will be no order costs.

13. Appeal allowed.


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