- 1 - NC: 2025:KHC-K:709 WP No. 202373 of 2022 IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH DATED THIS THE 31ST DAY OF JANUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE R.NATARAJ WRIT PETITION NO.202373 OF 2022 (GM-CPC) BETWEEN: SRI. SADGURU SHANTHANADA SARASWATI SWAMI BABA MAHARAJAMATH SRICHETRA KUDLIGI, TQ. SHORAPUR, DIST. YADIGIR, BY ITS MATHADIPATI UMAKANT S/O KRISHNA BHAT @ BABA MAHARAJ, AGED ABOUT 61 YEARS, OCC: PUJARI R/O KUDLIGI, TQ. SHORAPUR, DIST. YADAGIRI-585201. …PETITIONER (BY SRI. D. P. AMBEKAR, ADVOCATE) AND: 1. SRI. MALLAYYA S/O SIDDAPPA KALAL, AGED ABOUT 59 YEARS, OCC: AGRICULTURE, R/O BABA MAHARAJ MATH, COURT YARD, KUDLIGI, TQ. SHORAPUR, DIST. YADIGIR-585201. 2. SRI. KUDALING S/O BHIMANNA BHOI, AGED ABOUT 26 YEARS, OCC: AGRICULTURE, R/O BABA MAHARAJ MATH, COURT YARD, KUDLIGI, TQ. SHORAPUR, DIST. YADIGIR-585201. Digitally signed by RENUKA Location: High Court Of Karnataka - 2 - NC: 2025:KHC-K:709 WP No. 202373 of 2022 3. NAGAMMA W/O MAHADEVAPPA MAGGA, AGED ABOUT 36 YEARS, OCC: AGRICULTURE, R/O BABA MAHARAJ MATH, COURT YARD, KUDLIGI, TQ. SHORAPUR, DIST. YADIGIR-585201. 4. PARAMANNA S/O SHIVAPPA KEMBHAVI, AGED ABOUT 74 YEARS, OCC: AGRICULTURE, R/O BABA MAHARAJ MATH, COURT YARD, KUDLIGI, TQ. SHORAPUR, DIST. YADIGIR-585201. 5. BASANNAGOUDA S/O SHANKRAPPAGOUDA, AGED ABOUT 42 YEARS, OCC: AGRICULTURE, R/O BABA MAHARAJ MATH, COURT YARD, KUDLIGI, TQ. SHORAPUR, DIST. YADIGIR-585201. 6. CHANDRAPPAGOUDA S/O SHANKRAPPAGOUDA, AGED ABOUT 42 YEARS, OCC: AGRICULTURE, R/O BABA MAHARAJ MATH, COURT YARD, KUDLIGI, TQ. SHORAPUR, DIST. YADIGIR-585201. 7. DEVAKI W/O SANGAYYA BANGARI, AGED ABOUT 72 YEARS, OCC: AGRICULTURE, R/O BABA MAHARAJ MATH, COURT YARD, KUDLIGI, TQ. SHORAPUR, DIST. YADIGIR-585201 8. BASAMMA W/O MALLAPPA MULIMANI, AGED ABOUT 72 YEARS, OCC: AGRICULTURE, R/O BABA MAHARAJ MATH, COURT YARD, KUDLIGI, TQ. SHORAPUR, DIST. YADIGIR-585201. 9. BHAGAMMA W/O YAMANNA HONNARI, AGED ABOUT 64 YEARS, - 3 - NC: 2025:KHC-K:709 WP No. 202373 of 2022 OCC: AGRICULTURE, R/O BABA MAHARAJ MATH, COURT YARD, KUDLIGI, TQ. SHORAPUR, DIST. YADIGIR-585201. 10. RUDRAGOUDA S/O SHANKARGOUDA KUVINAHALLI, AGED ABOUT 59 YEARS, OCC: AGRICULTURE, R/O BABA MAHARAJ MATH, COURT YARD, KUDLIGI, TQ. SHORAPUR, DIST. YADIGIR-585201. 11. BASAVANTHRAYA S/O SHANMUKHAPPA, AGED 71 YEARS, OCC: AGRICULTURE, R/O BABA MAHARAJ MATH, COURT YARD, KUDLIGI, TQ. SHORAPUR, DIST. YADIGIR-585201. 12. GANGUBAI D/O RAMAPPA, AGED 61 YEARS, OCC: AGRICULTURE, R/O BABA MAHARAJ MATH, COURT YARD, KUDLIGI, TQ. SHORAPUR, DIST. YADIGIR-585201. 13. HANMANTHRAYA S/O MALLESHAPPA KACHAPUR, AGED ABOUT 60 YEARS, OCC: AGRICULTURE, R/O BABA MAHARAJ MATH, COURT YARD, KUDLIGI, TQ. SHORAPUR, DIST. YADIGIR-585201. 14. NABISAB S/O AMEENSA, AGED 72 YEARS, OCC: AGRICULTURE, R/O BABA MAHARAJ MATH, COURT YARD, KUDLIGI, TQ. SHORAPUR, DIST. YADIGIR-585201. …RESPONDENTS - 4 - NC: 2025:KHC-K:709 WP No. 202373 of 2022 (V/O DATED 23.09.2022 SERVICE OF NOTICE TO R1 TO R9 AND R11 TO R14 ARE DISPENSED WITH; SRI. SHIVANAND PATIL, ADVOCATE FOR R10) THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT, ORDER OF DIRECTION IN NATURE OF CERTIORARI QUASHING, ANNEXURE-G VIZ., ORDER DATED 12.08.2022 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, SHORAPUR, ON IA NO.4 FILED BY THE DEFENDANT NO.10 UNDER ORDER 14 RULE 5 OF CPC IN O.S.NO.10/2021 TREATING THE ADDITIONAL ISSUE AS PRELIMINARY ISSUE, B) ISSUE A WRIT, ORDER OF DIRECTION IN NATURE OF CERTIORARI QUASHING ANNEXURE-H, VIZ., ORDER DATED 12.08.2022 PASSED BY THE SENIOR CIVIL JUDGE AND JMFC, SHORAPUR, ON IA NO.6 FILED BY THE PLAINTIFF UNDER ORDER 8 RULE 9 OF CPC IN O.S.NO.10/2021. THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE R.NATARAJ ORAL ORDER The plaintiff in O.S.No.10/2021 pending consideration before the Senior Civil Judge, Shorapur (hereinafter referred to as the ‘Trial Court’) has filed this writ petition challenging an order dated 12.08.2022 allowing an application filed by the defendant (I.A.No.4) under Order XIV Rule 5 of CPC. He has also challenged an - 5 - NC: 2025:KHC-K:709 WP No. 202373 of 2022 order dated 12.08.2022 by which the Trial Court rejected I.A.No.6 filed by him under Order VIII Rule 9 of CPC. 2. The suit in O.S.No.10/2021 was filed for declaration that the plaintiff is the owner and in possession of the suit schedule property and to direct the defendant Nos.1 to 13 to remove the construction made in the suit schedule property which was identified in a sketch attached to the plaint and to hand over vacant possession of the suit property. The plaintiff claimed that the suit property was granted to it by the State Government on 27.08.1954 and was popularly known as ‘Baba Matha’. The plaintiff had installed a temple for ‘Ganapathi’ and ‘Saraswathi’ and there was appurtenant vacant space. Plaintiff claimed that in the year 2010 disputes arose between the plaintiff and the defendants regarding illegal construction of their houses in the suit property. On the request of the plaintiff, the Tahasildar conducted survey of the land on 26.03.2010 and drew a panchanama and was of the opinion that the defendants were in unlawful - 6 - NC: 2025:KHC-K:709 WP No. 202373 of 2022 possession of the suit schedule property. The plaintiff claimed that it requested the defendants to vacate the suit schedule property and hand over vacant possession. Since the defendants failed to comply, the plaintiff caused a notice to the defendants on 18.12.2020, which was of no avail. The plaintiff therefore filed the suit for declaration of its title to the suit property and for recovery of possession. 3. The defendant No.1 filed a written statement admitting the title of the plaintiff and also that he had no objection for handing over possession of the suit property. The defendant No.10 however contested the suit and raised various contentions and denied the entitlement of the plaintiff to the suit reliefs. The defendant No.10 filed an application under Order XIV Rule 5 of CPC to frame an additional issue as to whether he proved that the suit was not properly valued and that the court fee paid by the plaintiff was not sufficient. This application was contested by the plaintiff, who contended that the suit property was agricultural land and was not converted for non- - 7 - NC: 2025:KHC-K:709 WP No. 202373 of 2022 agricultural purposes. He contended that the suit was valued under Section 24 read with Section 7(2) of the Court Fee and Suits Valuation Act at `1,000/- and court fee of `25/- was paid thereon. The plaintiff also filed an application under Order VIII Rule 9 of CPC to reply to the written statement filed by defendant No.10. This application was contested by defendant No.10 who claimed that the application was not maintainable as the rejoinder submitted was a repetition of the averments of the plaint. 4. The Trial Court after considering the application as well as the objections filed thereto, allowed the application filed by the defendant No.10 and treated the proposed issue as an additional Issue No.1 and treated it as a ‘preliminary issue’. Insofar as the application filed by the plaintiff under Order VIII Rule 9 of CPC, it held that the reply to the written statement was a repetition of the averments of the plaint and that there was no need to file a rejoinder. It also relied upon the judgment of this Court - 8 - NC: 2025:KHC-K:709 WP No. 202373 of 2022 in the case of Amalgamated Bean Coffee Trading Company vs. Zareer Meenu Barucha and another1 to hold that a rejoinder is permissible only when the defendant raises a counter claim or set off. Being aggrieved by the aforesaid orders the plaintiff is before this Court. 5. The learned counsel for the plaintiff contends that the Trial Court committed an error in allowing an application filed by the defendant No.10 under Order XIV Rule 5 of CPC as such an issue did not arise. He contends that the land in question is an agricultural land and therefore the valuation of the suit is just and proper and there was no need for the trial court to frame an additional issue. Even otherwise he contends that the Trial Court could not have treated the additional issue No.1 as ‘preliminary issue’. In support of his contention, he relied upon the judgment of a Full Bench of this Court in the case of Venkatesh R.Desai vs. Smt.Pushpa 1 ILR 2005 KAR 2089 - 9 - NC: 2025:KHC-K:709 WP No. 202373 of 2022 Hosmani and others2 and contends that a preliminary issue cannot be framed unless the finding of the issue goes to the root of the matter affecting jurisdiction of the Court to try the suit etc. Insofar as the application filed by the plaintiff under Order VIII Rule 9 of CPC he contends that the reply filed by the plaintiff to the written statement could always be treated as subsequent pleadings and therefore there is no prohibition against the plaintiff submitting the reply to the written statement. 6. Per contra, the learned counsel for the defendant No.10 contends that the application filed for framing an additional issue was rightly allowed as the issue did arise for consideration. He invited the attention of the Court to paragraph No.8 of the written statement filed by the defendant No.10 wherein he contended that the plaintiff is required to pay court fees as per Section 29 of the Karnataka Court Fees and Suit Valuation Act and pay the court fees on the actual market value of the 2 ILR 2018 KAR 5095 - 10 - NC: 2025:KHC-K:709 WP No. 202373 of 2022 property, which according to the defendants was `30,00,000/-. He contends when the defendants had raised an issue regarding Court fee, the Court was bound to frame an issue and since the issue was not framed, the defendant No.10 was justified in filing an application under Order XIV Rule 5 of CPC requesting the Trial Court to frame an issue. He contends that the issue regarding Court fees was rightly treated as a ‘preliminary issue’. Insofar as the application filed by the plaintiff under Order VIII Rule 9 of CPC, he contends that the defendant No.10 had not raised any counter claim or set off and therefore there was no question of allowing the plaintiff to file a rejoinder. He however submits that the averments of the reply to the written statement were nothing but a reiteration of the averments of the plaint and therefore there was no justification for the application filed by the plaintiff to be allowed. - 11 - NC: 2025:KHC-K:709 WP No. 202373 of 2022 7. I have considered the submissions of the learned counsel for the plaintiff and the learned counsel for the defendant No.10. 8. As rightly contended by the learned counsel for the defendant No.10, he had raised an issue that the court fee paid on the plaint was not sufficient and that the valuation of the suit by the plaintiff was not correct. Therefore, the Trial Court was required to frame an issue whether the court fee paid by the plaintiff was sufficient. Therefore, the order passed by the Trial Court allowing the application filed by the defendant No.10 for an additional issue is just and proper and does not call for any interference. However, the Trial Court could not have treated the issue regarding sufficiency of court fee as a ‘preliminary issue’. It is not the case of the defendant No.10 that the Court did not have jurisdiction to try the suit or if the additional issue is answered in favour of defendant No.10, the Court would loose its jurisdiction. Therefore, to the extent of the impugned order, treating - 12 - NC: 2025:KHC-K:709 WP No. 202373 of 2022 the additional issue No.1 as a ‘preliminary issue’ the same warrants interference. 9. Insofar as the application filed by the plaintiff under Order VIII Rule 9 of CPC, it is now well settled that the plaintiff is also entitled to file a reply to the written statement. It may not be rejoinder in the true sense of the word and as provided under Order VIII Rule 9 of CPC. If the defendant No.10 has raised any contention which warrants the plaintiff to file reply, the same cannot be disallowed. Therefore, the application filed by the plaintiff under Order VIII Rule 9 of CPC deserves to be allowed and the reply statement filed by the plaintiff to the written statement shall be treated as further pleadings of the plaintiff. 10. In view of the above, the following order is passed : Writ Petition is allowed in part on the following terms :- - 13 - NC: 2025:KHC-K:709 WP No. 202373 of 2022 i) The order dated 12.08.2022 allowing the application filed by the defendant No.10 under Order XIV Rule 5 is upheld. However, the Trial Court is directed not to treat the issue regarding sufficiency of court fee as a ‘preliminary issue’ but shall answer the said issue along with all other issues, after a full fledged trial. ii) The application filed by the plaintiff under Order VIII Rule 9 of CPC is allowed and the impugned order rejecting the application filed by the plaintiff is set-aside. iii) The reply of the plaintiff to the written statement of the defendant No.10 shall be treated as further pleadings of the plaintiff. iv) Since the suit is filed in the year 2021, the Trial Court is requested to dispose off the suit in accordance with the Karnataka Case Law in Sub- Ordinate Court Rules, 2005. Sd/- (R.NATARAJ) JUDGE sn LIST NO.: 1 SL NO.: 30 CT:SI