- 1 - NC: 2025:KHC:1358 WP No. 3535 of 2019 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 3535 OF 2019 (GM-CPC) BETWEEN: H D VEERABHADRAPPA S/O LATE DODDEGOWDA SINCE DECEASED BY LRS 1. SMT. SOWBHAGYA W/O LATE H D VEERABHADRAPPA RESIDENT OF HANJAGONDANAHALLI KASABA HOBLI, ARSIKER TALUK HASSAN DISTRICT. 2. SMT. SHIVARATHNA W/O NIRANJANAMURTHY AGED ABOUT 51 YEARS RESIDENT OF ALADAHALLI BELAGARAHALLI POST TIPTUR TALUK TUMKUR DISTRICT 3. SMT. SUMITHRA W/O B .S. ARUN KUMAR AGED ABOUT 45 YEARS REIDENT OF BHEEMASANDRA KENGALAPURA POST HANDANAKERE HOBLI, CHIKKANAYAKANAHALLI TALUK TUMKUR DISTRICT. Digitally signed by VANAMALA N Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:1358 WP No. 3535 of 2019 4. SMT. MAMATHA W/O NAGESH P AGED ABOUT 44 YEARS REIDENT OF TANDARA LAKKAVVANA PALYA (T.L. PALYA) TIPTUR TOWN TUMKUR DISTRICT. 5. SMT. SHAMANTHA V W/O NIJAGUNA R AGED ABOUT 40 YEARS RESIDING AT I CROSS VINAYAKANAGARA SHIKARIPURA TOWN SHIMOGGA DISTRICT. …PETITIONERS (BY SRI. GANGADHARAPPA A V.,ADVOCATE) AND: 1. SMT. LAKSHMIDEVAMMA W/O LATE GIRIYAPPA AGED ABOUT 74 YEARS, 2. BASAPPA S/O LATE MUDDAPPA AGED ABOUT 76 YEARS, AGRICULTURIST 3. SMT B R MAMATHA W/O MANJUNATHA AGED ABOUT 35 YEARS, RESPONDENTS NO. 1 TO 3 ARE RESIDENT OF HENJAGONDANAHALLI KASABA HOBLI ARSIKERE TALUK HASSAN DISTRICT-573101. 4. H G VENKATESHABABU AGED ABOUT 48 YEARS, - 3 - NC: 2025:KHC:1358 WP No. 3535 of 2019 COCONUT MERCHANT M/S BALAJI TRADERS APMC YARD ARASIKERE TOWN RESIDING AT MARUTHI NAGARA ARSIKERE TOWN HASSAN DISTRICT-573101. 5. SMT JYOTHI V BABU W/O H G VENKATESHABABU AGED ABOUT 38 YEARS, RESIDENT OF MARUTHI NAGARA ARSIKERE TOWN HASSAN DISTRICT-573 101. …RESPONDENTS (BY SRI.K.G. SADASHIVAIAH., ADVOCATE FOR R1 TO R5) THIS WP IS FILED UNDER ARTICLES 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED 18.12.2018 AND 3.1.2019 PASSED BY THE COURT OF THE ADDITIONAL CIVIL JDUGE & JMFC AT ARSIKERE IN O.S.NO.15/2014, CERTIFIED COPY OF WHICH IS PRODUCED AS ANENXURE-E AND BE PLEASED TO SET ASIDE THE ADDITIONAL ISSUES FRAMED BY THE COURT OF I ADDL. CIVIL JUDGE & JMFC AT ARSIKERE IN O.S.NO.15/2014 ON 3.1.2019 CERTIFIED COPY OF WHICH IS PRODUCED AS ANNEXURE-D. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: - 4 - NC: 2025:KHC:1358 WP No. 3535 of 2019 CORAM: HON'BLE MR JUSTICE B M SHYAM PRASAD ORAL ORDER This petitioner is the plaintiff in O.S.No.15/2014 on the file of the I Additional Civil Judge and JMFC, Arasikere ['the civil Court']. The plaintiff had died during the pendency of this petition and his legal representatives have come on record. The civil Court by the impugned order dated 18.12.2018 has heard the parties on framing additional issues and has framed additional Issues directing an enquiry on one of the additional Issues. The additional Issues relate to the first respondent's case that the civil Court has no pecuniary jurisdiction to try the suit and the sufficiency of the Court fee paid by the deceased plaintiff. The additional Issue on pecuniary jurisdiction is treated as a 'Preliminary Issue' for an enquiry. 2. This Court must observe that on 18.12.2018 the civil Court has permitted the plaintiff to examine one of the attesting witnesses to the - 5 - NC: 2025:KHC:1358 WP No. 3535 of 2019 subject Will and Testament dated 23.12.1982 to be examined as PW.2, and with the civil Court directing the learned counsel to cross examine this witness, he has also been duly cross examined. Neither the deceased petitioner nor the first respondent is aggrieved by the civil Court's order dated 18.12.2018 in these regards. The grievance as canvassed in this petition is with the civil Court's decision to frame additional Issues and to treat the additional Issue on pecuniary jurisdiction as a Preliminary Issue. 3. The deceased petitioner has filed this suit in O.S.No.15/2014 for declaration of title that in the subject properties [two immovable properties within the limits of Henjagondanahalli Grama Tana, Kasaba Hobli, Arasikere Taluk] relying upon the Testament and Will dated 23.12.1982 and for a decree for permanent injunction. The deceased petitioner has filed valuation slip stating in specific term that the value of these two properties is about Rs.1,000/- and - 6 - NC: 2025:KHC:1358 WP No. 3535 of 2019 therefore he is paying Court fee of Rs.25,000/- valuing the suit under Section 24(B) of the Karnataka Court Fee and Suit Valuation Act, 1958. 4. Sri A.V. Gangadharappa, the learned counsel for the legal representatives of the deceased petitioner, submits that the decision of Full Bench of this Court in Venkatesh R. Desai v. Smt. Pushpa Hosmani1 is that not in every case an Issue on valuation and Court fee should be taken as a Preliminary Issue and it would be open to the Courts to defer the decision on such issue to be part of the final adjudication. However, when queried both Sri.A.V. Gangadharappa and K.G. Sadashivaiah, the learned counsel for the first respondent - contesting defendant, submit that if ultimately the Additional Issue on the civil Court's pecuniary jurisdiction is held against the legal representatives of the deceased plaintiff who are prosecuting the suit, all the 1 AIR 2019 KAR 47 - 7 - NC: 2025:KHC:1358 WP No. 3535 of 2019 evidence, including the evidence of the attesting witness, may not avail to them. 5. The merit of the petitioners’ grievance with the civil Court's order to frame additional Issues, additional Issues framed and treating the additional Issue on pecuniary jurisdiction as Preliminary Issue is examined by this Court in view of the exposition by the Full Bench that when a dispute on valuation is raised and that touches upon the jurisdiction of the concerned civil Court, the Courts could consider the concerned issue as a Preliminary Issue. On the validity of the evidence recorded if it is ultimately held that the civil Court has no pecuniary jurisdiction, this Court must refer to the following exposition by the Apex Court in ONGC v. Modern Construction & Co2 which is reiterated in the 2 [2014] 1 SCC 648 - 8 - NC: 2025:KHC:1358 WP No. 3535 of 2019 subsequent decision in Exl. Careers and another v. Frankinn Aviation Services Private Ltd.3. “17. Thus, in view of the above, the law on the issue can be summarised to the effect that if the court where the suit is instituted, is of the view that it has no jurisdiction, the plaint is to be returned in view of the provisions of Order 7 Rule 10 CPC and the plaintiff can present it before the court having competent jurisdiction. In such a factual matrix, the plaintiff is entitled to exclude the period during which he prosecuted the case before the court having no jurisdiction in view of the provisions of Section 14 of the Limitation Act, and may also seek adjustment of court fee paid in that court. However, after presentation before the court of competent jurisdiction, the plaint is to be considered as a fresh plaint and the trial is to be conducted de novo even if it stood concluded before the court having no competence to try the same.” 6. This Court must opine that when so examined, no exception can be taken with the civil Court's decision to frame additional Issues, additional Issue framed and treating the additional 3 [2020] 12 SCC 667 - 9 - NC: 2025:KHC:1358 WP No. 3535 of 2019 Issue on pecuniary jurisdiction as a Preliminary Issue. However, in the peculiarities of the case, especially with one of the attesting witnesses is aged 90 years, this Court is of the considered view that the present petition must be disposed of directing the civil Court to complete enquiry and decide on the Preliminary Issue within a time frame. 7. At this stage Sri A.V. Gangadharappa and Sri. K.G. Sadashivaiah submit that the civil Court is vacant and the other Court in Arsikere is also vacant, but a concurrent arrangement has been made and that any decision on the Preliminary Issue will have to be by the Court holding concurrent charge unless a Presiding Officer is posted within the timeline fixed by this Court. This submission is found reasonable, and hence, the following: ORDER [A] The petition stands disposed of directing the civil Court or the Court holding concurrent charge of the civil Court as the case may be - 10 - NC: 2025:KHC:1358 WP No. 3535 of 2019 to complete enquiry on the Preliminary Issue and decide on such Issue by 29.03.2025. [B] The petitioners and the first respondent as also the other defendants are directed to assist the Court/s in such expeditious decision. Sd/- (B M SHYAM PRASAD) JUDGE SA ct:sr