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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 14TH DAY OF NOVEMBER, 2018

BEFORE

THE HON’BLE MR.JUSTICE K.N. PHANEENDRA

MFA NO.7023/2017 (CPC) BETWEEN SMT M VEENA WIFE OF HONNEGOWDA D/O LATE MADEGOWDA AGED ABOUT 41 YEARS R/AT NO 940, A. THIRTHANKARA ROAD, SIDDARTHANAGARA LAYOUT MYSURU – 570 011 ... APPELLANT

(BY SRI. BHASKAR HEGDE, ADV.) AND 1. SMT SUMA D/O LATE MADEGOWDA

W/O HONNEGOWDA R/O NO.62, SRI KRISHNA

MOSAIC TILES, BILAGUMBA CROSS NELAMANGALA ROAD, MANJUNATHA NAGARA RAMANAGARA TOWN – 571 511 2. SMT VIJAYAMMA W/O LATE MADEGOWDA AGED ABOUT 66 YEARS MUDAGERE VILLAGE MALUR HOBLI CHANNAPATNA TALUK – 571 501

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3. SRI M. SANTHOSH S/O LATE MADEGOWDA AGED ABOUT 35 YEARS MUDAGERE VILLAGE MALUR HOBLI CHANNAPATNA TALUK – 571 501 4. SMT NALINA M W/O LINGEGOWDA G. S. D/O LATE MADEGOWDA AGED ABOUT 43 YEARS NO.4088, 3RD CROSS SHANKARANAGAR CHAMUNDESHWARI TEMPLE STREET MANDYA CITY – 571 401 5. SMT RASHMI M W/O SHIVANNA D/O LATE MADEGOWDA AGED ABOUT 41 YEARS NO.294, BHAVYA MEDICAL & GENERAL STORES 7TH MAIN ROAD, NEAR BAJAJ SHOW ROOM 100 FEET ROAD, BSK III STAGE NEAR DEVEGOWDA PETROL BUNK BENGALURU 560 085 6. SMT PREETHI M W/O SURESH B D/O LATE MADEGOWDA AGED ABOUT 37 YEARS NO.887, III CROSS, E & F BLOCK AGNI HAMSA ROAD KUVEMPUNAGAR, MYSURU-570 012 7. SMT PALLAVI M W/O SHIVAKUMARA

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D/O LATE MADEGOWDA NO.1194 III MAIN, MANASANAGARA NAGARABHAVI, BENGALURU-560 072 8. THE MANAGING DIRECTOR

INDIAN TELECOM DEPARTMENT ABHINAY COMPLEX, BVK IYENAGAR ROAD, BENGALURU, PRESENTLY THE GENERAL MANAGER

(NWP-CFA), OFFICE OF PGM, BSNL BANGALORE TELECOM DISTRICT TELEPHONE HOUSE, 5TH FLOOR CTO COMPLEX, RAJ BHAVAN ROAD BENGALURU-560 001 9. STATE BANK OF MYSORE MUDUGERE BRANCH MUDUGERE, CHANNAPATNA TALUK 571 501 10. SMT B S VYSHALI W/O N NARENDRA KUMAR AGED ABOUT 46 YEARS NO.606 B.H.C.S. LAYOUT WARD NO.182 8TH MAIN UTTARAHALLI VILLAGE BANGALORE SOUTH TALUK -560 061 ... RESPONDENTS

THIS MFA IS FILED UNDER ORDER 43 RULE (1)(a)

OF CODE OF CIVIL PROCEDURE 1908 PRAYING TO ALLOW

THIS APPEAL AND SET ASIDE THE ORDER DATED

18.07.2017 PASSED BY THE III ADDL.DISTRICT AND

SESSIONS JUDGE, RAMANGARA ON I.A.NO.3 IN

R.A.NO.60/2016 AND CONSEQUENTLY DISMISS THE SAID

APPLICATION.

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THIS MFA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 05.10.2018 COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT, THIS DAY K.N. PHANEENDRA, J. DELIVERED THE FOLLOWING:

J U D G M E N T

The appellant has preferred this appeal against

the order passed on IA No.III by the III Additional

District and Sessions Judge, Ramanagara in

R.A.No.60/2016 dated 18.7.2017 in holding that, the

said Court has no pecuniary jurisdiction to try the

appeal and consequently returned the appeal to the

appellant (plaintiff No.1 in O.S.No.80/2012) to present

the same before the High Court of Karnataka, as the

valuation of the subject matter of the suit and appeal

exceeds Rs.10,00,000/- (Rupees Ten Lakhs) only.

2. The Registry, after filing of the appeal has

raised objections with regard to the jurisdiction of this

Court as the subject matter is less than Rs.10,00,000/-

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and the appeal is also not maintainable under Order

XLIII Rule 1(a) of CPC.

3. Keeping open the said office objection, the

matter was posted for hearing the counsel’s submission

regarding the maintainability of the appeal.

4. No notices have been issued to the respondents

as the maintainability of the appeal itself has been

questioned in this appeal.

5. The first objection raised by the office is that

the appeal is not maintainable under Order XLIII Rule

1(a) of CPC because of the simple reason that the

Appellate Court i.e. the III Additional District and

Sessions Judge, Ramanagara, has returned the appeal

for proper presentation before the appropriate court.

Therefore, the said order virtually falls under Order VII

Rule 10 of CPC, though specifically the provision has

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not been mentioned by the III Additional District Judge

while returning the memorandum of appeal.

6. Order XLIII Rule 1(a) of CPC refers to the

appeals to the Appellate Courts and as it is, the order

passed by the III Additional District Judge,

Ramanagara, the next appellate court would be the

High Court. However, Order VII Rule 10 of CPC refers

to return of plaint which is mutatis mutandis applicable

to appeals also. Therefore, the said objection of the

office deserves to be overruled.

7. The next question which arose for consideration

after hearing the learned counsel for the appellant is

that –

‘Whether the Trial Court order is

proper and correct in returning the

appeal for proper presentation before the

High Court?’.

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8. In order to consider this particular aspect, it is

just and necessary to have the brief factual matrix of

this case:

The appellant before the District Court-

Smt.M.Veena and another by name Smt.Suma have

jointly filed a suit in O.S.No.80/2012 for partition and

separate possession of their joint legitimate share in the

suit schedule property and sought for partition of their

2/8th joint share, valuing the joint share at

Rs.14,30,500/- for the purpose of jurisdiction. The said

suit is partly dismissed to the effect that, the plaintiffs

claim over the suit item Nos.3, 13, 19, 25, 26, 29, 36,

42 in ‘A’ schedule properties and ‘B’ suit schedule

properties were dismissed. However, the suit of the

plaintiff Nos.1 and 2 is decreed to the extent of 9/64th

share in item Nos.1, 2, 4-12, 14-18, 20 to 24, 27, 28, 30

to 35, 37 to 41, 43, 44 and 45 in ‘A’ schedule properties,

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against which judgment and decree, the first plaintiff-

Smt.Veena has preferred an appeal in R.A.No.60/2016

before the III Additional District and Sessions Judge,

Ramanagara, bifurcating her share and valuing the

appeal for a sum of Rs.7,15,250/- being the first

plaintiff’s share in the suit schedule property. The first

plaintiff felt that, the value is less than Rs.10,00,000/-.

Therefore, the appeal was preferred before the District

Judge, Ramanagara.

9. It is also pertinent to note here that aggrieved

by the same judgment and decree, defendants 1 and 2

Smt.S.Vijayamma and M.Santhosh have preferred an

appeal before this Court in RFA No.1815/2016 valuing

the subject matter of the suit as valued by the plaintiffs

before the Trial Court for the purpose of jurisdiction for

a sum of Rs.14,30,000/-.

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10. In this background, court has to examine

whether the order passed by the III Additional District

and Sessions Judge in R.A.No.60/2016 is proper and

correct?

11. Both the appeals are before this Court i.e.,

MFA 7023/2017 and RFA 1815/2016. Therefore, the

materials available in RFA 1815/2016 i.e., with regard

to the valuation slip, decree passed by the trial Court

and the plaint averments have to be looked into by this

Court for the purpose of considering the appeals.

12. Learned counsel for the appellant in this

regard strenuously contended that the learned District

Judge has committed serious error in returning the

Memorandum of Appeal holding that, the plaintiffs

cannot bifurcate their shares and file the appeal before

the Sessions Court at Ramanagara. They relied upon

the provisions of Section 35(2) of the Karnataka Court-

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Fees and Suits Valuation Act, 1958 (for brevity

hereinafter referred to as ‘the KCF & SV Act’) for the

purpose of arguing that individual share of the plaintiffs

has to be taken into consideration for the purpose of

Court fee and jurisdiction. Therefore, it is contended

that the plaintiffs share i.e., the first plaintiff’s share in

the suit schedule property can be individually valued at

Rs.7,15,250/- as the plaintiff's in the original suit

valued the joint share of plaintiffs 1 and 2 at

Rs.14,30,500/-. Therefore, it is the plaintiff’s individual

right to file an appeal as per their wish if they did not

intend to prefer an appeal jointly. Therefore, the appeal

was very well maintainable before the District Court.

Therefore, returning of the Memorandum of Appeal is

bad in law.

13. In order to appreciate the above said aspects,

it is just and necessary to look into the plaint averments

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as culled out in the judgment passed by the trial Court.

As per the plaint, the plaintiffs’ have jointly claimed

partition and separate possession of their joint share in

the suit ‘A’ and ‘B’ schedule properties. The judgment

and decree of the trial Court also shows that, the decree

was passed considering the joint share of plaintiff Nos.1

and 2 to the extent of 9/64th share in some of the

properties as noted above. Even the valuation slip filed

in O.S.No.80/2012 in respect of both the plaintiffs

clearly discloses that, they have categorically stated

that, they have filed the suit for the relief of partition

and separate possession of their legitimate joint share

in the suit schedule properties and they have valued the

suit stating that the plaintiffs’ together are entitled for

2/8th share and their joint share was valued at

Rs.14,30,500/- and paid the fixed court fee as per

Section 35(2) of the KCF & SV Act.

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14. The learned counsel for the appellant

strenuously contends before this court that if the

provision of Section 35(2) of the KCF & SV Act, 1958 is

meaningfully and properly read, it is the single

plaintiff’s individual share has to be calculated for the

purpose of Court fee and Jurisdiction, though the

plaintiffs have jointly prayed for the decree, but they

can very well bifurcate their share and file appeal before

the appellate court.

15. In this regard, now let me consider the

provision of Section 35 of the KCF & SV Act which reads

as follows :-

“35. PARTITION SUITS: (1) In a

suit for partition and separate possession

of a share of joint family property or of

property owned, jointly or in common, by a

plaintiff whose title to such property is

denied, or who has been excluded from

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possession of such property, fee shall be

computed on the market value of the

plaintiff’s share.

(2) In a suit for partition and separate

possession of joint family property or

property owned, jointly or in common, by a

plaintiff who is in joint possession of such

property, fee shall be paid at the following

rates:

Rupees fifteen if the value of

plaintiff’s share is Rs.3,000 or less;

Rupees thirty if the value is above

Rs.3,000 but not more than

Rs.5,000;

Rupees one hundred if the value

is above Rs.5,000 but below

Rs.10,000 and

Rupees two hundred if the value

is Rs.10,000 and above.

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(3) Where, in a suit falling

under sub-section (1) or sub-section

(2), a defendant claims partition and

separate possession of his share of

the property, fee shall be payable on

his written statement computed on

half the market value of his share or

at the rates specified in sub-

section(2), according as such

defendant has been excluded from

possession or is in joint possession.

(4) Where, in a suit falling

under sub-section (1) or sub-section

(2), the plaintiff or the defendant

seeks cancellation of decree or other

document of the nature specified in

section 38 separate fee shall be

payable on the relief of cancellation

in the manner specified in that

section.”

(emphasis supplied to the relevant words)

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16. On a plain meaningful and meticulous

reading and understanding of the above said provision,

it clearly discloses that if a suit is filed for partition and

separate possession of a particular share in joint family

property, fee shall be computed on the market value of

the plaintiff’s share.

17. The using of the word “plaintiff’s share”

indicates that it is the plaintiff’s individual share which

is the subject matter for the purpose of jurisdiction and

the court fee. Even under Section 35(2) of the KCF &

SV Act, in a suit for partition and separate possession of

a joint family property filed by the plaintiff, who is in

joint possession of the property, fee shall be computed

and fixed court fee has to be paid. The learned counsel

mainly concentrated on the words used i.e., ‘a plaintiff’

and ‘plaintiffs’ as emphasized and contended that it is

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individual and single plaintiff’s share has to be taken

into consideration.

18. In my opinion, the said argument of the

learned counsel is not tenable. When the plaintiffs

themselves do not want at the time of filing of the suit

for bifurcation of their separate share and they want the

court to declare their joint share in the suit property,

that shows that they would like to continue jointly so

far as their joint share is concerned i.e. 2/8th share as

claimed by the plaintiffs jointly in O.S.No.80/2012. The

Court cannot direct the parties to claim the share in

their individual capacity or not to claim the share

jointly. The plaintiffs are the masters of their case and

it is their will and wish either to take individual and

separate shares or to take joint shares and to live

happily and jointly together in their life.

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19. Therefore, when the Court cannot mandate

the plaintiffs to value the suit in a particular manner, it

is the valuation that has been made by the plaintiffs

that has to be taken into consideration. Therefore, it is

clear that if the plaintiffs are more than one and if they

claim individual share then they can join as plaintiffs in

the plaint and then each plaintiffs’ share has to be

individually calculated and jurisdiction can be

ascertained for the purpose of court fee and jurisdiction

to the extent of each plaintiffs individual share.

However, if the plaintiffs jointly claim their share in the

suit schedule property, in that eventuality, the multiple

plaintiffs who claim joint share, all the plaintiffs will

become one component for the purpose of court fee and

jurisdiction and they all constitute singe plaintiff so as

to understand the words ‘a plaintiff’ and ‘plaintiffs’ as

used in the above provision under Section 35 of the KCF

& SV Act.

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20. It can very well be illustrated by the following

illustration.

“If a joint family consisting of a father

and four sons; father and three sons would

like to continue jointly with respect to the joint

family properties and they had no intention to

separate themselves. However, one of the

sons do not want to continue in the joint

family but he do not want to file any suit

against his father and other brothers. In

order to set at rest the differences between

them, the father and three brothers

themselves file a suit for declaration of their

joint share in the suit schedule property and

to declare the share of the defendant in the

suit schedule property and to give a share of

the son who would like to go out from the

family.”

21. In the above situation, can the Court say that

the plaintiffs cannot get declaration of their joint share

in the suit schedule property and direct them to file a

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suit for their individual share and value the suit

individually of each plaintiff for the purpose of court fee

and jurisdiction and to pay court fee? Certainly the

court cannot direct the plaintiffs in such a manner.

Plaintiffs are the masters of their case, they can file the

suit seeking any relief under any law which provides

them to file their suit. Therefore, in such an

eventuality, all the plaintiffs i.e. father and other three

sons in the above illustration form a common

component i.e., single component as per the word ‘a

plaintiff’ and the word ‘plaintiffs’. In such an

eventuality the joint share claimed by them has to be

evaluated for the purpose of court fee and jurisdiction.

Therefore, the said provision cannot be in any manner

be interpreted.

22. Now, coming back to the present case, as I

have already narrated the plaintiffs together claimed

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joint share to the extent of 2/8th share and their share

was valued at Rs.14,30,500/-. For the purpose of

preferring an appeal, Section 49 of the KCF & SV Act

will come into play which reads as follows :

“49. APPEALS: Save as provided in

section 48, the fee payable in an appeal shall

be the same as the fee that would be payable

in the court of first instance on the subject

matter of the appeal.

Provided that, in levying fee on a

memorandum of appeal against a final decree

by a person whose appeal against the

preliminary decree passed by the court of first

instance or by the court of appeal is pending,

credit shall be given for the fee paid by such

person in the appeal against the preliminary

decree.

EXPLANATION (1): Whether the appeal

is against the refusal of a relief or against the

grant of the relief the fee payable in the

appeal shall be the same as the fee that

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would be payable on the relief in the court of

first instance.

EXPLANATION(2): XXXX

EXPLANATION(3): XXXX

EXPLANATION(4): Where the relief

prayed for in the appeal is different from the

relief prayed for or refused in the court of first

instance, the fee payable in the appeal shall

be the fee that would be payable in the court

of first instance on the relief prayed for in the

appeal.

EXPLANATION(5): XXXX”

(emphasis supplied)

23. Section 49 of the Act makes it abundantly

clear that, in an appeal the fee shall be the same as the

fee that would be payable in the Court, for the first

instance on the subject matter of the appeal. Therefore,

what is the subject matter in the appeal and the subject

matter before the trial Court has to be taken into

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consideration for the purposes of computing the court

fee and jurisdiction. In this regard, Explanation (1) &

(4) play a dominant and important role, where it says

that, whether the appeal is against the refusal of a relief

or against the grant of the relief, the fee payable in the

appeal shall be the same as that of the fee that would be

payable on the relief in the court at the first instance.

Therefore, whether the suit is fully decreed, partly

decreed, partly dismissed or fully dismissed, it makes

no difference for the purpose of evaluating the subject

matter for the purpose of court fee and jurisdiction.

Therefore, it is clear from the above said provision that

for all practical purposes, the Court has to consider

what is the evaluation made by the plaintiffs at the first

instance before the Trial Court and the same shall be

treated as the evaluation for the purpose of court fee

and jurisdiction in order to ascertain the appellate

jurisdiction.

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24. Though the learned counsel for the appellant

relied upon various rulings, but none of the rulings are

on the above said point. Therefore, in my opinion, the

Court has to consider the valuation made by the

plaintiffs jointly before the Trial Court for the purpose of

court fee and jurisdiction. As I have already narrated,

the plaintiffs have evaluated their share jointly for the

purpose of jurisdiction at Rs.14,30,500/- which is the

subject matter of the suit before the trial Court and as

well as before the Appellate Court. Therefore, the

plaintiff No.1 cannot alone bifurcate her share for the

purpose of entrusting the appellate jurisdiction to the

Principal District and Sessions Judge. It is the value

that has been made by the plaintiffs jointly before the

trial court has to be taken into consideration for the

purpose of vesting the appellate jurisdiction. If the first

plaintiff alone would like to file any appeal, then also

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the total value of the subject matter before the trial

Court has to be taken into consideration for the purpose

of preferring an appeal.

25. Therefore, under the above said facts and

circumstances, I do not find any strong reasons to

interfere with the order passed by the Appellate Court

i.e. the III Additional District and Sessions Judge,

Ramanagara, in holding that the appeal was not

maintainable in view of the evaluation made before the

Trial court evaluating the plaintiffs’ joint share at

Rs.14,30,500/-.

26. There is no dispute by the appellant’s counsel

that if the value of the share of the plaintiffs, is less

than Rs.10,00,000/-, then the District Court would get

jurisdiction to deal with the appeal as the judgment and

decree is passed by the Senior Civil Judge and JMFC,

Channapatna. It is also not in dispute that if the value

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of the subject matter of the suit exceeds

Rs.10,00,000/-, the appeal is maintainable before the

Single Bench of the High Court and upto the value of

Rs.15,00,000/- and above the appeal has to be

preferred before the Division Bench of the High Court.

27. The following guidelines though not

exhaustive but are necessary to be formulated for the

purpose of guidance to the trial Courts in evaluating the

suit for the purpose of court fee and jurisdiction:

(1) Payment of Court fee fixing the jurisdiction of

the Courts will depend on plaint averments alone.

Neither the averments in the written statement, nor the

evidence nor the final decision have a bearing on the

decision relating to court fee.

(2) The plaintiff in a suit being dominus litis has

the choice of filing a suit of a particular nature or seek a

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particular relief. Neither the defendant nor the court

can alter or change the nature of the suit as one for a

different relief as the suit is filed under different

category and require the plaintiff to pay court fee on

such altered category of suit, unless the plaintiff himself

seeks for the same by way of an amendment.

(3) The trial Courts should always insist for

separate evaluation of the subject matter of the suit for

the purpose of court fee and jurisdiction. In order to

avoid confusion in the jurisdiction of the appellate

court, the value of the Court fee and jurisdiction in a

partition suit are to be evaluated depending upon the

facts and circumstances of each case. If the valuation

slip is found to be incorrect or incomplete, the plaintiff

shall be required to set it right before registration of the

suit or within and specified time if the suit is already

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registered. The trial court or appellate courts should

take care in properly directing the office in this regard.

(4) If the plaintiffs claim their joint share

without asking for individual separate share, then in

such an event, the joint share of the plaintiffs becomes

the subject matter of the suit and for appeal, then suit

should be valued for the purpose of court fee and

jurisdiction on the joint share of the plaintiffs, if the

plaintiffs are more than one.

(5) If the plaintiffs are more than one, but they

claim their individual and separate share to be declared,

in such an eventuality, for the purpose of court fee, they

have to pay the court fee on their individual share

separately, but for the purpose of jurisdiction the

largest share amongst the plaintiffs becomes the subject

matter of the suit, therefore, in such an eventuality,

single largest share of the plaintiff has to be taken into

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consideration as subject matter of the suit for the

purpose of jurisdiction of the court.

(6) Whether the suit is fully decreed as prayed

for, partly decreed or partly dismissed or fully

dismissed, it makes no difference so far as the subject

matter of the suit is concerned and even for the

purpose of appellate jurisdiction. The evaluation made

by the plaintiff at the first instance before the trial Court

shall be treated as the evaluation of the subject matter

of the suit and Appeal for the purpose of court fee and

jurisdiction.

(7) In a partition suit whether the relief prayed

for in the appeal is different, the relief prayed for, for the

first instance, for the purpose of appellate jurisdiction,

the subject matter of the suit would be taken into

consideration for the purpose of court fee and

jurisdiction.

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(8) So far as counter claims are concerned, the

counter claim shall not exceed the pecuniary

jurisdiction of the court in which the plaint is

presented. In a decree passed in a suit in which set off

or counter claim is claimed can be subject to the same

provision in respect of an appeal, which would have

been subject to the condition that if no set off or counter

claim had been claimed. Therefore, appeals from

decrees relating to the set offs or counter claim shall lie

to the court to which the appeal in respect of the

subject matter of the plaint would lie.

(9) The amount or value of the subject matter of

the original suit or proceeding of a civil nature, found in

sub Section (1) of Section 19 of CPC relates to such

amount or value of the subject matter meant for

determining the pecuniary jurisdiction of the court and

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not that meant for computing court fee payable thereon

under the Court Fees Act.

(10) If the subject matter of the appeal is different

from that of the subject matter of the suit, then the

appellate court before entertaining the appeal has to

hear and consider the said point as a preliminary point

for the purpose of ascertaining its jurisdiction.

28. Though the above said guidelines are not

exhaustive, but, they are to be borne in mind while

dealing with the original and appellate jurisdiction of

the courts.

29. In view of the above said elucidation of the

factual matrix and legal position, the order passed by

the III Additional District and Sessions Judge,

Ramanagara, in returning the Memorandum of Appeal,

is no way illegal and the same is proper and correct.

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Under the above said circumstances, the

Miscellaneous First Appeal is dismissed as devoid of

merits.

Sd/-

JUDGE PL*