Veeragouda and Ors. Vs. Shantakumar @ Shantappagowda ILR 2009 Kar 887 JUSTICE N. Kumar and JUSTICE Jawad Rahim, The substituted rule provides that, a Court must give judgment on all issues but where any issue of law relates to the jurisdiction of the Court or bar to suit, the Court may postpone settlement of other issues until the aforesaid issue has been determined as a preliminary issue and the Court may deal with the suit in accordance with the decision on that preliminary issue. The power of the Court to decide the preliminary issue and postpone settlement of other issues is discretionary and not mandatory. After 1976 Amendment, no other issues other than the issues of law relating to (i) jurisdiction of the Court, (ii) bar to the suit created by law, can be decided as preliminary issue. Those issues must be of pure question of law as distinguished from mixed questions of law and fact. ….. A perusal of the said provision makes it clear that an obligation is cast on the Court even before ordering the plaint to be registered, to decide on the materials and allegations contained in the plaint, what is the correct fee payable on the plaint The said decision however is subject to review, further review, corrections in the manner specified in the succeeding sub-sections. Sub-section (2) of Section 11 provides, a 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, plead that the subject matter of the suit has not been properly valued or that the fee paid is not sufficient. If such a plea is taken, naturally the Court has to frame an issue. Sub-section (2) further provides all questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. In other words, it mandates, if an issue regarding court fee is raised, the said issue shall be decided before recording evidence on other issues. Therefore, the mandate of law is very clear. No discretion is left to the Court for postponing the decision regarding issue of court fee once such a plea is taken in the written statement or before the evidence is recorded. ………. . Order XIV Rule 2 of the CPC is the general provision of civil law relating to trial of suits and issues including any issues as preliminary issue. The Karnataka Court Fees and Suits Valuation Act, is a special law. It has received the assent of the President of India. It prevails over the general law. It is well settled when a special mode has been prescribed by a special law to do a particular job or to exercise the power in relation to subject thereunder, then special law has to prevail over the general law and the mode so prescribed by special law would have to be followed in respect of matters covered therein. Section 11 of the Act, specifically deals with decision as to proper fee in Courts. It gives a special direction to the Court to decide the issue relating to valuation and Court fee, before recording of evidence on merits of the ' case. Therefore, in so far as the issues relating to valuation and Court fee are concerned, Order XIV Rule 2 of the CPC has to yield to Section 11 of the Act. ………………. The Karnataka Court Fees and Suits Valuation Act, 1958 was enacted to amend and consolidate the laws relating to court fees and valuation of suits in the State of Karnataka. Chapter III of the Act deals with determination of fee payable. Section 10 of the Act mandates that the plaintiff shall file with the plaint, a statement in the prescribed form, of particulars of the subject matter of the suit and his valuation thereof unless such particulars and the valuation are contained in the plaint. Order VII Rule 1(i) of the CPC provides that the plaint shall contain a statement of the value of the subject matter of the suit for the purpose of jurisdiction and of Court fees, so far as the case admits.
The Supreme Court in the case of Major S.S. Khanna v. Brig. F.J. Dillon AIR 1964 SC 497 interpreting Order 14 Rule 2 of the CPC prior to amendment in 1976 held as under: Under Order 14 Rule 2 where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may '- be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlement of the issues of fact until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of fact may be exericsed only where in the opinion of the Court the whole suit may be disposed of on the issues of law alone, but the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as preliminary issues. Normally all the issues in a suit should be tried by the Court: not to do so, especially when the decision on issues even of law depends upon the decision of issues of fact, would result in a lop-sided trial of the suit.
The Supreme Court in the case of Rathnavarmaraja v. Smt. Vimla AIR 1961 SC 1299 dealing with the Court Fees Act held that, the Court Fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. Whether the proper court fee is paid on a plaint is primarily question between the plaintiff and the State. The Section only enables the defendant to raise a contention as to the proper court fee payable on a plaint and to assist the Court in arriving at a just decision on that question. That Act provides that for the purpose of deciding whether the subject matter of the suit or other proceeding has been properly valued or whether the fee paid is sufficient, the Court may hold such enquiry as it considers proper and issue a commission to any other person directing him to make such local or other investigation as may be necessary and report thereon. The anxiety of the Legislature to collect court fee due from the litigant is manifest from the detailed provisions made in Chapter III of the Act.
In the case of Umarabba v. Pathunni and Ors. 1984 Kar L.J 97, Court interpreting Section 11(2) of the Act held that, a reading of the above provision shows that, on the face of it, it was incumbent on the trial Court to decide this issue before recording evidence affecting the petitioner on the merits of his claim.
In the case of Smt. Sakinabi (Deceased) BY Lrs. v. Zeenathunnisa (Deceased) by L.Rs and Anr. 1999(2) KAR L.J 471, Court has held that, a reading of the Section per se reveals that it is the duty of the Court when there is a dispute about the market value of the subject matter of suit and its valuation and proper court fee paid, to determine that question and not to leave the question hanging.
The Karnataka Theosophical Federation (r) v. Balakrishnaashrama ILR 1999 Kar 2930 dealing with the Act held that, a perusal of Sub-sections (2) to (6) of Section 11 per se reveals and mandates that all questions relating to proper valuation of the subject matter of the suit and payment of proper court fee arising on the basis of the pleas and written statement shall be heard and decided before evidence is recorded affecting such defendant, on the merits of the claim. Section 11 of the Act provides remedy against order of the Court in such matters as per Sub-section 4(a) and (b) thereof provides a complete course of action at proper stage provided therein and is complete code by itself.
Thimmaiah v. Sreenivasa ILR 1999 Kar 3660 held as under: Therefore, when the special statute has made it incumbent on the trial court to decide the issue of court fee before recording evidence on merits of the respective claim of the parties, the trial Court has to follow the mandate of law. It is not permissible to give a go-by to this mandate in the special statute.
A. Madhava Hegde v. Rajendra S. Revankar ILR 2000 Kar 1267 held as under: 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.