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NC: 2024:KHC-D:8814
WP No. 107560 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
TH
DATED THIS THE 28 DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 107560 OF 2017 (GM-CPC)
BETWEEN:
1. MEHABUBBI W/O. IMAMSAHEB KILLEDAR,
AGE: 69 YEARS, OCC: HOUSEHOLD,
R/O: BILEBAL, TQ: KUNDAGOL,
DIST: DHARWAD.
2. FARIDA W/O. ABDULSAB SAUDAGAR,
AGE: 43 YEARS, OCC: HOUSEHOLD WORK,
TH
R/O: 4 CROSS, AYODHYA NAGAR,
OLD HUBBALLI, HUBBALLI.
3. BIBI AYESHA
W/O. BABAJAN KANAVI,
AGE: 41 YEARS, OCC: HOUSEHOLD WORK,
R/O: BEHIND TEMPLE, KERI ONI, ANNIGERI,
TQ: NAVALGUND, DIST: DHARWAD.
4. KADARSAB S/O. IMAMSAHEB KILLEDAR,
Digitally signed by
AGE: 37 YEARS, OCC: AGRICULTURE,
ASHPAK
KASHIMSA
MALAGALADINNI R/O: BILEBAL, TQ: KUNDGOL,
Location: HIGH
COURT OF
DIST: DHARWAD.
KARNATAKA
DHARWAD
BENCH
…PETITIONERS
Date: 2024.07.05
12:45:07 +0530
(BY SRI. VINOD SHANKAR PAWAR, ADVOCATE)
AND:
HUSSAINBI W/O. DADESAB MULAGUND
@ HASEENA BEGUM,
W/O. DADAMIYA MULAGUND,
AGE: 53 YEARS, OCC: HOUSEHOLD WORK,
R/O: LAKXMESWAR, TQ: SHIRAHATTI,
DIST: GADAG.
…RESPONDENT
(BY SRI. LAXMAN T. MANTAGANI, ADVOCATE)
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NC: 2024:KHC-D:8814
WP No. 107560 of 2017
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227
OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE A WRIT IN THE
NATURE OF CERTIORARI QUASHING THE ORDER DATED:17.07.2017
PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE, KUNDGOL IN
O.S.NO.32/2016 ON I.A.NO.3 VIDE ANNEXURE-D; CONSEQUENTLY
ALLOW I.A.NO.3 FILED BY PETITIONER HEREIN IN O.S.NO.32/2016
SEEKING RE-CASTING OF THE ISSUES ON THE FILE OF ADDITIONAL
SENIOR CIVIL JUDGE, KUNDGOL.
THIS PETITION IS COMING ON FOR PRELIMINARY HEARING
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
The petitioners/defendants are assailing the order of the
learned Judge passed on I.A.No.III filed under Order XIV Rule 5
of The Code of Civil Procedure seeking recasting of issues. The
said application is rejected by the learned Judge.
2. Respondent/plaintiff, who is the sister of petitioners
herein has instituted a suit seeking the relief of partition and
separate possession. The present petitioners are disputing the
plaintiff’s right in the suit schedule properties. The defendants
are also disputing the plaintiff’s joint possession over the suit
schedule properties. A specific defence is set-up in the written
statement indicating that plaintiff has not properly valued the
plaint for the purpose of Court fee. While plaintiff has paid
maximum Court fee of Rs.200/-, the defendants are contending
before this Court that plaintiff not being in possession has to
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pay the Court fee under Section 35(1) of The Karnataka Court-
Fee And Suits Valuation Act, 1958 (for short ‘the Act’).
3. If these significant details are looked into, this
Court is of the view that defendants having disputed the
plaintiff’s possession and there being specific pleading in regard
to payment of Court fee on the plaint, issue would arise for
consideration. The defendants are entitled to assert that the
plaint is not properly valued. Since, defence is set-up by the
petitioners, the burden would lie on the defendants to
substantiate that plaint is not properly valued for the purpose
of Court fee. Therefore, the order under challenge is not
sustainable. For the foregoing reasons, this Court passes the
following:
ORDER
allowed
i) Writ petition is .
ii) The impugned order dated 17.07.2017 passed
by Addl. Senior Civil Judge, Kundgol in
O.S.No.32/2016 on I.A.No.III is hereby set-
aside.
iii) Trial Court shall frame appropriate issue and
cast burden on the defendants to substantiate
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that the plaint needs valuation under Section 35
(1) of the Act.
iv) It is needless to mention that this issue cannot
be treated as preliminary issue since trial has
commenced.
Sd/-
JUDGE
AM
List No.: 1 Sl No.: 2