Kumar, J. - (1.)THIS is a plaintiffs' appeal against the order of the learned single Judge who has directed the trial Court to try and decide issue No.3 relating to the court fee as a preliminary issue.
(2.)FOR the purpose of convenience, the parties are referred to as they are referred to in the original suit.
The plaintiffs filed O.S. No. 213/2000 on the file of the Additional Civil Judge (Sr. Division), Raichur, for the relief of partition and separate possession of their 1/6th share in the suit schedule property. They also sought for a decree for refund of 1/6th share in the compensation received by the defendant. The defendant filed his written statement contesting the claim. He contended that the compensation received by him in respect of the land acquired by the State Government was his exclusive property. He specifically pleaded that the valuation of the suit and payment of fixed Court fee under Section 35(2) is wrong, and insufficient. As per the claim, each plaintiff has to pay the required Court Fee under Section 21 of the Karnataka Court Fees and Suit Valuation Act. On the basis of the aforesaid pleadings, the Court below framed as many as 5 issues. The 3rd issues framed by the Court is as under :-

"Whether the defendant proves that the court fee paid is insufficient"

Thereafter, the defendant filed an application under Section 11 of the Karnataka Court Fees and Suits Valuation Act,1958 (hereinafter for short referred to as 'the Act') to try and decide issue No.3 as a preliminary issue. The said application was rejected by the trial Court on the ground that the issue regarding court fee is a mixed question of law and fact and it cannot be treated and tried as a preliminary issue. Aggrieved by the said order the defendant preferred a Writ Petition before this Court. The learned single Judge after referring to sub-Section (2) of Section 11 of the Act, held that the aforesaid provision mandates all questions relating to proper valuation of the subject matter of the suit and payment of the court fee arising on the basis of the plaint and written statement shall be heard and decided before evidence is recorded affecting such defendant, on merits of the claim. Therefore, he held that the issue relating to Court Fee should be tried as a preliminary issue. Aggrieved by the said order, the plaintiffs are in appeal.

(3.)THE learned counsel for the plaintiffs assailing the impugned order of the learned single Judge contended that, in view of the judgment of this Court in Smt. Sujatha Narayana And Others Vs Smt. Leela Ramakrishna And Others ILR 2006 KAR 4463 the issue regarding court fee has to be tried along with other issues and not as a preliminary issue and, therefore, he seeks for setting aside the said order.
In Smt. Sujatha Narayana's case, the learned Single Judge of this Court has held as under:-

"Since the pecuniary jurisdiction of the City Civil Court is not questioned, the issue of the point of determination of Court Fees can be tried along with other issues. Further Section 11 of the CFSV Act, 1958 was made keeping in view the pecuniary jurisdiction of the then Munsiff (now Civil Judge (Jr.Dn.) and Civil Judge (now Civil Judge Sr Dn.). But, after the City Civil Court Act, 1979 came into force, Section 11 of the CFSV Act has not been amended. Therefore, there is no bar for the Court below to try the issue along with other issues. The burden is on the plaintiffs to establish that they have properly valued the suit and paid proper Court Fee. Under such circumstances, the petitioners filing an application for appointment of Commissioner and another application to determine the Court Fee payable before trying other issues is without any good ground. "