ORDER
1. Assailing the order dated 1-10-1999 of the Principal Civil Judge (Sr. Dn.), Mangalore, Dakshina Kannada on LA. No. VII filed under Order 14, Rule 2 of the CPC, the present civil revision petition is filed. LA. No. VII was filed by the defendant in O.S. No. 58 of 1998 under Order 14, Rule 2 of the CPC requesting the Trial Court to try the issue pertaining to Court fee and jurisdiction as preliminary issue. The Trial Court has dismissed the said application holding that the trial on issue regarding Court fee and jurisdiction is not a pure question of law but a mixed question of law and facts and therefore, the same cannot be tried as a preliminary issue and accordingly I.A. No. VII was dismissed.
2. Hence, the present civil revision petition is filed.
3. The learned Counsel for the petitioner contend that the order of the learned Trial Judge refusing to try the issue regarding Court fee as a preliminary issue is illegal and the same suffers from material irregularity. The further contention of the learned Counsel for the petitioner is that the impugned order is in contravention of Section 11 of the Karnataka Court Fees and Suits Valuation Act, 1958 (the 'Act' for short). The impugned order is also attacked on the ground that the same is not a speaking order and discretion exercised by the Trial Court is improper.
4. The learned Counsel for the respondent has supported the impugned order stating that the issue could not have been decided by the Trial Court having regard to the fact that it required recording of evidence as the same is not a pure question of law but is a mixed question of law and facts and therefore the order of the learned Trial Judge is justified.
5. The brief facts that are relevant for the purpose of deciding the question involved in this case are that the respondent has filed O.S. No. 58 of 1998 on the file of the Principal Civil Judge (Sr. Dn.), Mangalore, Dakshina Kannada for partition and separate possession of plaint 'A' schedule property on the ground that he has purchased half share in the said property from one A. Anantha Hegde, who is the brother of the petitioner. The petitioner (defendant) has filed written statement before the Trial Court specifically contending that the respondent has not valued the suit properly and that the Court fee paid on the plaint is not sufficient. The petitioner also filed LA. No. V to frame an additional issue regarding suit valuation and Court fee and I.A. No. VII to try the said issue as preliminary issue. So far as LA. No. V to frame additional issue is concerned, the same was allowed. But the Trial on Court fee, as a preliminary issue has been rejected.
6. Therefore, the question for consideration is, whether the Trial Court was correct in not trying the additional issue as a preliminaryissue. In order to answer the said question, it is necessary to extract some of the provisions of the Karnataka Court Fees and Suits Valuation Act, 1958.
'Section 11. Decision as to proper fee in Courts.--(1) In every suit instituted in any Court, the Court shall, before ordering the plaint to be registered, decide on the materials and allegations contained in the plaint and on the materials contained in the statement if any, filed under Section 10, the proper fee payable thereon, the decision being however subject to review, further review and correction in the manner specified in the succeeding sub-sections.
(2) Any defendant may, by his written statement filed before the first hearing of the suit or before evidence is recorded on the merits of the claim but, subject to the next succeeding sub-section, not later, plead that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient. All question arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. If the Court decides that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient, the Court shall fix a date before which the plaint shall be amended in accordance with the Court's decision and the deficit fee shall be paid. If the plaint be not amended or if the deficit fee be not paid within the time allowed, the plaint shall be rejected and the Court shall pass such order as it deems just regarding costs of the suit.
(3).....
(4).....
(5) All questions as to value for the purpose of determining the jurisdiction of Courts arising on the written statement of a defendant, shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim'.
A careful reading of sub-section (2) of Section 11 of the Act shows that all questions arising regarding the proper valuation of the suit shall be heard and decided before the evidence is recorded. Therefore, it is mandatory that whenever question relating to valuation of the suit is concerned, the same shall be tried and decided in the first instance before any evidence is recorded on merits.
7. In order to butress his contention, the learned Counsel for the petitioner, has relied on the decision in Umarabba v Pathunni and Others, wherein this Court has held that it is incumbent on the Trial Court to decide the issue relating to Court fee before recording evidence affecting the parties on the merits of the claim. He has also relied on the decision in the case of Thimmaiah v Sreenivasa, for the proposition thatthe Trial Court is required to first decide the issue as to whether the Court fee paid is proper or not. Therefore, when the special statute has made it incumbent on the Trial Court to decide the issue on Court fee before recording evidence on merits of the respective claim of the parties, the Trial Court has to follow the mandate of law and it is not permissible to give a go-by to this mandatory provision enacted in the special statute like Karnataka Court Fees and Suits Valuation Act.
8. The provisions of Order 14, Rule 2 are only procedural and the same cannot outweigh the mandatory provisions of the Karnataka Court Fees and Suits Valuation Act. It is stated that though the suit is for partition and separate possession, the defendant has disputed the right derived by the plaintiff from his predecessor in title who according to the defendant has no manner of right to sell the property in question.
9.The learned Counsel for the respondent contended that the suit is one for partition and separate possession and in a suit for partition and separate possession, the plaintiff-respondent is liable to pay only a fixed Court fee as provided under Section 35 of the Karnataka Court Fees and Suits Valuation Act, 1958. The plaintiff having stepped into the shoe of a sharer of a joint family is liable to pay only a fixed Court fee and not on market value of the property.
10. The question whether the plaintiff is entitled to pay only a fixed Court fee or that he is liable to pay the Court fee on the market value of the property has to be decided by the Trial Court. The only question for the present is whether the Trial Court was justified in not trying the additional issue admittedly framed at the instance of the petitioner herein and refusing to try the same as preliminary issue. In view of the mandatory provision of sub-section (2) of Section 11 of the Karnataka Court Fees and Suits Valuation Act and as has already been held by this Court in the decision cited in the cases of Umarabba and Thimmaiah, supra, the Trial Court was not justified in refusing to try the additional issue as preliminary issue.
11. The learned Counsel for the respondent has relied on the decision in Umakanth M. v M. Malathi and Others, for the proposition that if no plea is raised in the written statement, the same cannot be raised subsequently by filing a separate application. It is not disputed that on the application filed by the defendant, the issue was raised on the basis of the plea that was already made in the written statement. This is not a case where there was no plea in the written statement and the plea was sought to be raised for the first time. There is no substance in the contention of the learned Counsel for the respondent in this regard. Further, he has also contended that when the question regarding payment of Court fee is a mixed question of fact and law, the same cannot be tried as a preliminary issue relying on the same decision. In paragraph 3 of the said decision, it is stated as follows:
'3. Normally having regard to the mandatory provision of Section 11(2) of the Karnataka Court Fees and Suits Valuation Act, if there is a plea by the defendant in his written statement that the Court fee paid is insufficient, then that should be tried as a preliminary issue as that sub-section directs and as held by this Court in the case of Umarabba, supra. But on the facts of the instant case, it is seen that the 4th defendant never pleaded the question of Court fee in his written statement. Therefore, insofar as he is concerned, sub-section (2) of Section 11 is not attracted'.
Therefore, it is not a case that there was no plea in the written statement regarding the valuation. There is a specific plea in the written statement regarding the valuation. When a specific plea is taken in the written statement, even this Court in the said decision cited supra has held that normally having regard to the mandatory provision of Section 11(2) of the Karnataka Court Fees and Suits Valuation Act, if there is a plea by the defendant in his written statement that the Court fee paid is insufficient, then that should be tried as a preliminary issue as has been held so in Umarabba's case, supra.
12. The learned Counsel for the respondent has also relied on a decision in Mukunda Nayak v Sundara Nayak. In my opinion, the said decision will not advance the case of the respondent inasmuch as it has been held in the said decision that Section 11(2) of the Act does require the Court to decide the questions relating to valuation and Court fee on an objection by the defendant, before evidence is recorded on merits and the said requirement of Section 11(2) is not discretionary.
13. The learned Counsel for the respondent also relied on a decision in T.K. Srinivasamurthy and Others v T. Seetharamaiah and Others, for the proposition that a revision is not maintainable if the defendant is not prejudiced. It is the specific case of the defendant that the vendor of the plaintiff had no right to sell the property in favour of the plaintiff as there was a restriction on the transfer by the vendor of the plaintiff. Therefore, it cannot be said that the defendant is not prejudiced by the transaction.
14. For the reasons stated above, I am of the view that having regard to the mandatory provisions of Section 11(2) of the Karnataka Court Fees and Suits Valuation Act, 1958, the issue regarding the Court fee should be tried as a preliminary issue. The rejection of the same by the Trial Court is improper exercise of jurisdiction. Accordingly, this revision petition is allowed and the order of the Trial Court on LA. No. VII is set aside. Parties to bear their own costs.