1 in the High Court of Karnataka at Bangalore

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 5TH DAY OF NOVEMBER, 2014

BEFORE

THE HON’BLE MR.JUSTICE ARAVIND KUMAR

C.R.P.NO.49/2014

BETWEEN:

1.SRI.A.RAMAPRIYAN S/O A.ANANTHACHAR, AGED ABOUT 40 YEARS, REPRESENTED BY POWER OF ATTORNEY HOLDER SRI.PRASHANTH DWARAKANATHAN RESIDING AT NO.41, 2ND PHASE, NANDINI THEATRE, PIPELINE ROAD, MAHALAKSHMIPURAM, BENGALURU-560 086.

2.SMT.SMRITHI DWARKANATH W/O A.ANANTHACHAR, AGED ABOUT 40 YEARS, REPRESENTED BY POWER OF ATTORNEY HOLDER SRI.PRASHANTHA DWARAKANATHAN RESIDING AT NO.41, 2ND PHASE, NANDINI THEATRE, PIPELINE ROAD, MAHALAKSHMIPURAM, BENGALURU-560 086.

3.SRI.S.KRISHNA KUMAR S/O K.SHANTHANA KRISHNA, AGED ABOUT 25 YEARS, RESIDING AT NO.30, 16TH MAIN, 9TH CROSS, BTM 1 STAGE, BENGALURU-560 029.

4.SRI.K.G.SRIHARSHA BHAT S/O K.GOPALAKRISHNA BHAT, AGED ABOUT 38 YEARS, RESIDING AT NO.1088, 35TH `D’ CROSS, JAYANAGAR 4TH `T’ BLOCK, BENGALURU-560 041.

5.SRI.ESWAR KRISHNAN S/O T.E.KRISHNAN, AGED ABOUT 29 YEARS, RESIDING AT NO.302, R.R.RESIDENCY, L.G.FOOD ROAD, THAVAREKERE, BENGALURU-560 029.

6.SRI.G.RAMACHANDRAN S/O N.GUNASEKARAN, AGED ABOUT 35 YEARS, RESIDING AT NO.G-2, GROUND FLOOR, TUSCAN MISBA, SOUTH APARTMENTS, NO.124, 2ND CROSS, MARUTHI HBCS, BTM LAYOUT, 1 STAGE, BENGALURU-560 029.

7.SRI.AMLAN JYOTHI PAUL S/O RANJITH KUMAR PAUL, AGED ABOUT 25 YEARS,

RESIDING AT NO.406, 26TH MAIN, 7TH CROSS, BTM II STAGE, BENGALURU-560 029.

8.SRI.ANAND ESHWARADAS S/O K.R.ESHWARDAS, AGED ABOUT 29 YEARS, RESIDING AT NO.39, 3RD CROSS, 2ND MAIN, BRINDAVAN NAGAR, THAVAREKERE, BENGALURU-560 029.

9.SRI.T.VIJAY KUMAR S/O D.THIRUPPATHI, AGED ABOUT 34 YEARS, RESIDING AT NO.30, 1ST MAIN, TATA SILK FARM, BASAVANAGUDI, BANGALORE-560 004.

10.SMT.V.GOWRI W/O T.VIJAY KUMAR, AGED ABOUT 28 YEARS, RESIDING AT NO.30, 1ST MAIN, TATA SILK FARM, BASAVANAGUDI, BANGALORE-560 004.

11.SRI.R.ANUSH S/O S.S.RAMAN, AGED ABOUT 26 YEARS, RESIDING AT NO.24, ANUGRAHA, SELVAM NAGAR, VADAVALLI POST, COIMBATORE-641 041.

12.DR.SHEELA KUMARI DAS W/O G.NARASINGA RAO,

AGED ABOUT 48 YEARS, RESIDING AT NO.8-11, 86/61, KAUSTUBHA, NGO COLONY, RAICHUR-584 103

13.SRI.MOHAMMED MEHDI S/O MOHAMMED HUSSAIN, AGED ABOUT 25 YEARS, RESIDING AT NO.16, 1ST FLOOR, 1ST CROSS, ANNEPALYA, BENGALURU-560 057.

14.SMT.SHUBHA AKKI W/O SHIVAKUMAR CHANAL, AGED ABOUT 33 YEARS, RESIDING AT NO.76, 1ST FLOOR, 4TH CROSS, 4TH MAIN, ARAKERE MICO LAYOUT, BENGALURU.

15.SRI.DEBAJYOTHI PAL S/O PRANAB KUMAR PAL, AGED ABOUT 29 YEARS, RESIDING AT NO.24/9, 8TH MAIN, 19TH `D’ CROSS, N.S.PALYA, BTM II STAGE, BENGALURU-560 076.

16.SMT.TANUSHREE PAUL W/O DEBAJYOTHI PAL, AGED ABOUT 29 YEARS, RESIDING AT NO.24/9, 8TH MAIN, 19TH `D’ CROSS, N.S.PALYA, BTM II STAGE, BENGALURU-560 076.

17.SRI.SURENDRA NAIK S/O RAGHURAY NAIK, AGED ABOUT 34 YEARS, RESIDING AT NO.104, 3RD FLOOR, SRI.VENKATESHWARA NILAYA, 9TH CROSS, PARK AREA, 2ND MAIN, WILSON GARDEN, BENGALURU-560 027.

18.SRI.PRABUDH SINGH S/O SURESH CHANDRA SINGH AGED ABOUT 32 YEARS, RESIDING AT NO.25/34, `AGHANYA’, 15TH MAIN, BTM LAYOUT, 2ND STAGE, BENGALURU-560 076.

19.SMT.PARUL SINGH W/O PRABUDH SINGH, AGED ABOUT 27 YEARS, RESIDING AT NO.25/34, `AGHANYA’, 15TH MAIN, BTM LAYOUT, 2ND STAGE, BENGALURU-560 076.

20.SRI.MURUGAN S.PILLAI S/O M.SENTHIL ARUMUGAM, AGED ABOUT 31 YEARS, RESIDING AT NO.PH-2, LBITHA ENCLAVE, ROYAL SHELTERS, DEVARACHIKKANAHALLI, BENGALURU.

21.SMT.KAVITHA W/O MURUGAN S.PILLAI,

AGED ABOUT 30 YEARS, RESIDING AT NO.PH-2, LBITHA ENCLAVE, ROYAL SHELTERS, DEVARACHIKKANAHALLI, BENGALURU.

22.SANDRA DYAS W/O RACHAN ROCHE, AGED ABOUT 30 YEARS, RESIDING AT NO.26, OPPOSITE HULIMAVU POLICE STATION, HULIMAVU VILLAGE, BANNERGHATTA ROAD, BENGALURU-560 076.

23.GULSHAN SHETTY BEDEMAR S/O K.P.SHETTY, AGED ABOUT 33 YEARS, RESIDING AT NO.149/19, 1ST FLOOR, 6TH CROSS, OPPOSITE WILSON GARDEN POLICE STATION, WILSON GARDEN, BENGALURU-560 027.

24.SRI.BALAJI KRISHNA MOORTHY S/O KOLATHU KRISHNAMOORTHY, AGED ABOUT 29 YEARS, RESIDING AT NO.71/3, RAGHUPRIYA APARTMENTS, RAGHAVENDRA COLONY, 5TH MAIN, CHAMARAJPET, BENGALURU-560 018.

25.SMT.SUGANYA.C W/O BALAJI KRISHNAMOORTHY,

AGED ABOUT 28 YEARS, RESIDING AT NO.71/3, RAGHUPRIYA APARTMENTS, RAGHAVENDRA COLONY, 5TH MAIN, CHAMARAJPET, BENGALURU-560 018.

26.SRI.MOHAMMED ABDUL KHADER S/O KAMAL BASHA, AGED ABOUT 30 YEARS, RESIDING AT NO.14/3, 4TH LINK MAIN ROAD, MADIWALA, BENGALURU-560 068.

27.SRI.L.V.VISWANATHAN S/O L.V.VAIDYANATHAN, AGED AOBUT 31 YEARS, RESIDING AT NO.S-4, SRI SAI RESIDENCY, SARVABHOUMA NAGAR, BANNERGHATTA ROAD, BENGALURU-560 076.

28.SRI.P.H.HARISHA BHATTA S/O LATE HANUMANTHA BHATTA, AGED ABOUT 31 YEARS, RESIDING AT NO.123/3, 7TH CROSS, 19TH MAIN, J.P.NAGAR, 2ND PHASE, BENGALURU-560 078.

29.SRI.V.SHAIN S/O G.VIKRAMAN AGED ABOUT 30 YEARS, RESIDING AT NO.373, ANISH VILAS,

NEW BYAPPANHALLI, INDIRANAGAR, BENGALURU-560 038. ..PETITIONERS

(BY SMT.N.V.BHAVANI, ADVOCATE FOR SRI.VIJAY N.V., ADVOCATE)

AND:

1.SMT.PACHAMMA W/O LATE MUNISWAMY, AGED ABOUT 55 YEARS, RESIDING AT NO.5, 1 CROSS, BANNERGHATA ROAD, B.T.M. II STAGE, NAINAPPASHETTY PALYA, BEGUR HOBLI, BANGALORE SOUTH TALUK.

2.SRI.M.NAGARAJ S/O LATE MUNISWAMY, AGED ABOUT 36 YEARS, RESIDING AT NO.5, 1 CROSS, BANNERGHATA ROAD, B.T.M. II STAGE, NAINAPPASHETTY PALYA, BEGUR HOBLI, BANGALORE SOUTH TALUK.

3.SRI.VAJRAMUNI S/O LATE MUNISWAMY, AGED ABOUT 34 YEARS, RESIDING AT NO.5, 1 CROSS, BANNERGHATA ROAD, B.T.M. II STAGE, NAINAPPASHETTY PALYA, BEGUR HOBLI,

BANGALORE SOUTH TALUK.

4.SMT.SAROJAMMA D/O LATE MUNISWAMY, AGED ABOUT 32 YEARS, RESIDING AT NO.5, 1 CROSS, BANNERGHATA ROAD, B.T.M. II STAGE, NAINAPPASHETTY PALYA, BEGUR HOBLI, BANGALORE SOUTH TALUK.

5.SMT.BHAGYAMMA W/O LATE NAGARAJA REDDY, AGED ABOUT 55 YEARS, RESIDING AT NO.286, 6TH CROSS, NANJA REDDY COLONY, BANGALORE-17.

6.SRI.VENKATESH S/O LATE NAGARAJA REDDY, AGED ABOUT 35 YEARS, RESIDING AT NO.286, 6TH CROSS, NANJA REDDY COLONY, BANGALORE-17.

7.SMT.SHANTHAMMA D/O LATE GURAPPA REDDY, W/O SRI.K.V.NAGA REDDY, AGED ABOUT 40 YEARS, RESIDING AT NO.106/2, 3RD CROSS, VINAYAKANAGAR, HALASANDRAPALYA, BENGALURU-560 017.

8.SMT.KANTHAMMA D/O LATE GURAPPA REDDY, W/O GOVINDA REDDY, AGED ABOUT 38 YEARS, RESIDING AT NO.363, NEAR SAI RAM TEMPLE, HALASANDRAPALYA MAIN ROAD, BENGALURU-560 017.

9.SMT.INDIRA D/O LATE GURAPPA REDDY, W/O SRI.RAMAKRISHNA REDDY, AGED ABOUT 35 YEARS, RESIDING AT SRI VENKATESHWARA CEMENT MART, KONENA AGRAHARA, HAL POST, BENGALURU-560 017.

10.SRI.N.SATHYANARAYANA S/O LATE NARASIMHAIAH, AGED 53 YEARS, RESIDING AT A NO.55, 4TH CROSS, K.S.R.T.C. LAYOUT, J.P.NAGAR, II PHASE, BANGALORE-560 078.

11.SRI.M.SRIDHAR S/O SRINIVAS SAIT, AGED 55 YEARS, RESIDING AT NO.1475, 11TH MAIN, 38TH CROSS, IV `T’ BLOCK, JAYANAGAR, BANGALORE-560 041.

12.SRI.GOPALA S/O CHIKKAPAPANNA,

AGED 64 YEARS, RESIDING AT BILEKAHALLI VILLAGE, BANNERGHATTA ROAD, BEGUR HOBLI, BANGALORE SOUTH TALUK.

13.SMT.THIMMAKKA W/O LATE PUTTAPPA, AGED ABOUT 99 YEARS, RESIDING AT NO.126, 8TH CROSS, 19TH MAIN ROAD, J.P.NAGAR, 2ND PHASE, MARENAHALLI, BANGALORE-76.

14.SRI.N.ANAND S/O NARASIMHAIAH, AGED ABOUT 65 YEARS, RESIDING AT NO.161/31, 10TH `B’ MAIN ROAD, 1ST BLOCK JAYANAGAR, BANGALORE-11.

15.SRI.RUPESH ANAND S/O N.ANAND, AGED ABOUT 36 YEARS, RESIDING AT NO.161/31, 10TH `B’ MAIN ROAD, 1ST BLOCK JAYANAGAR, BANGALORE-11.

16.SRI.S.R.NARAYANA MURTHY S/O RATHNAIAH SHETTY, AGED ABOUT 60 YEARS, RESIDING AT NO.277, T.MARIYAPPA ROAD, II BLOCK, JAYANAGAR,

BANGALORE-11.

17.M/s.R.K.SURAKSHA PROPERTIES HAVING ITS OFFICE AT NO.68, N.M.S. LAYOUT, AREHALLI VILLAGE, UTTARAHALLI HOBLI, SUBRAMANYAPURA POST, BENGALURU SOUTH TALUK, BENGALURU-560 010. ..RESPONDENTS

(BY SRI.T.SESHAGIRI RAO, ADVOCATE FOR R1 TO R4, SRI.B.RANGASWAMY, ADVOCATE FOR R-5 TO R-9, R-13 IS DELETED VIDE ORDER DATED 05.06.2014, NOTICE TO R- 16 HELD SUFFICIENT VIDE ORDER DATED 05.06.2014, R- 11, 14, 15 -SERVED)

THIS CRP IS FILED UNDER SECTION 115 OF CPC., AGAINST THE ORDER DATED 21.01.2014 PASSED ON IA NO.10 IN O.S.NO.4809/2008 ON THE FILE OF THE XXXVII ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE, DISPOSING OFF IA NO.10 FILED UNDER ORDER 7 RULE 11(c) OF CPC.

THIS CRP COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

ORDER

Defendants 10 to 38 are questioning the correctness of order dated 21.01.2014 passed by XXXVII Additional City

Civil and Sessions Judge, Bangalore, whereunder application

I.A.No.10 filed by them for rejection of plaint under Order VII

Rule 11(c) of C.P.C has been disposed of with following observations:

“After considering the affidavit of the President of Suraksha Sunflower Apartments Owners Association and the submissions of their counsel on the I.A., this court held that, rejection of plaint at this stage does not arise. Because, if the defendants have made out a case at the time of cross-examination of plaintiffs stating that, what was the court fee payable by the plaintiff on the plaint and whether such court fee paid on the plaint or not, at that time, U/Sec.11(2) of KCF and SV Act, this Court would have deferred the recording of further cross-examination of P.W.1. But, no such ground was made out by the counsel for defendant No.10 to 38 in the cross- examination of P.W.1. Even though such ground was not made out in the cross-examination of P.W.1 there is no bar for the defendant’s counsel to make out a case as to what was the actual market value of the suit schedule property as on the date of filing of the suit and what was the court fee payable by the plaintiff on the same. If such facts are made out by the defendant’s

counsel in the evidence of defendants, even before pronouncing the judgment or before drawing the decree this Court can recover the deficit court fee from the plaintiff. With these observations, the I.A.No.10 is disposed off accordingly”.

2. Grievance of the revision petitioners before trial court was that proper court fee has not been paid after amendment of plaint namely after addition of paragraphs

19(A) to 19(F) and insertion of prayer at Sl.No.(iii) (1) to (iii)

(27) and also fresh valuation memo having not been filed.

Trial court has rightly observed said fact had not been brought to the notice of court before recording of evidence commenced and has held even at the time of drawing up of decree deficit court fee if any can be recovered from the plaintiff if it is found to be so namely when there is improper payment of court fee. For exercise of power under clause (c) of Rule 11 of Order VII there should have been adjudication or determination with regard to actual payment of court fee and if within the time allowed if plaintiff has failed to pay

15 such court fee, then only such court would get cause of action for rejection of plaint. In the present case such a situation has not arisen at all and as such without adjudicating the issue of payment of court fee, application

I.A.No.10 dismissed by trial court vide order dated

21.01.2014 cannot be found fault with and as such order of trial court is hereby affirmed by dismissing the revision petition. Dismissal of I.A.No.10 by trial court or rejection of this revision petition would not come in the way of petitioner filing necessary application before the trial court seeking for appropriate direction to plaintiff to pay the court fee determined or the trial court determining the court fee payable by plaintiff.

With this observation revision petition is hereby dismissed.

Sd/- JUDGE

SBN