MUKUNDA NAYAK Vs. SUNDARA NAYAK
HIGH COURT OF KARNATAKA
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(1.)This petition by the defendant in OS.14 of 1966 on the file of the Civil Judge, Udipl, is directed against an Order made on 11-9-1968 on IA. No.I, preferred by him under S. 11 (2) of the Mysore Court-fees and Suits Valuation Act, 1958 (hereinafter referred to as the Act) . By the impugned Order the prayer of the defendant for treating the issue relating to valuation of subject matter of the suit for the purposes o'f Court-fee as a preliminary issue, had been rejected.
(2.)The original suit being one for partition and separate possession of joint family properties, Court-fee had been paid under S.35(2) of the Act. The defendant's contention was that such valuation was incorrect as according to him there was a prior partition. He also filed, though belatedly, an application under S.11 (2) of the Act for a trial of the issue relating to valuation before evidence was recorded on other issues bearing on the merits o the case. The learned Civil Judge rejected the application on the ground, inter aha, that the issue involved a mixed question of fact and law. This revision is directed against that Order.
(3.)Sri Santhosh Hegde, the learned Counsel for the petitioner, relying strongly on the provisions ot S.11 (2) of the Act, submitted that the rule of procedure enacted therein was mandatory and that there was no option left to the Court to depart from it and postpone the consideration of such an issue to a later stage in the trial of the suit Sri P. Viswanatha Shetty, the learned Counsel appealing on behalf of the respondent, submitted that a defendant could not invoke the jurisdiction of the Court under S.115, CPC. in matters pertaining to Court-fee payable on a plaint. He further submitted that the defendant in tne present case was not at all prejudiced in any manner on account of the procedure followed by the Court. He also contended that having regard to the circumstances with which the Court was faced, it was an eminently reasonable order and therefore, not liable to be interfered with by this Court in exercise of its discretionary jurisdiction under S. 115 CPC., even if there was an element of illegality or irregularity involved in the making of it. In support of these propositions he relied on two decisions : Ratnavarmaraja v. Smt. Vimla, AIR 1961 SC. 1299 and H. S. Siddappa v. Lakshmamma , (1965) 1 Mys.L.J. 232.
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