- 1 - HC-KAR NC: 2025:KHC:36685 WP No. 22898 of 2025 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF SEPTEMBER, 2025 BEFORE THE HON'BLE MR. JUSTICE M.NAGAPRASANNA WRIT PETITION NO. 22898 OF 2025 (GM-CPC) BETWEEN: SRI. SYED ISMAIL, S/O LATE SYED IBRAHIM, AGED ABOUT 41 YEARS, RESIDING AT NO.437/B, 5TH CROSS, NEAR BDA COMPLEX, HBR LAYOUT, 2ND BLOCK, BENGALURU – 560 043. …PETITIONER (BY SRI. D.R.RAVISHANKAR, SENIOR ADVOCATE FOR MS. SIRI RAJASHEKAR, ADVOCATE) AND: SRI. C.SHIVARAJU, AGED ABOUT 53 YEARS, S/O MINNIGAPPA, RESIDING AT NO.31, 2ND MAIN ROAD, MARENAHALLI, VIJAYANAGAR, BENGALURU – 560 050. …RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE ORDERS DATED 06.11.2024 AT ANNEXURE-D PASSED IN OS FR NO.1429/2023 BY THE PRINCIPAL SENIOR CIVIL JUDGE, BANGALORE RURAL, BENGALURU AND THEREBY FIX A DATE Digitally signed by NAGAVENI Location: High Court of Karnataka - 2 - HC-KAR NC: 2025:KHC:36685 WP No. 22898 of 2025 FOR PETITIONERS APPEARANCE AND PAYMENT OF COURT FEE AND PERMIT TO PROSECUTE THE SUIT. THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE M.NAGAPRASANNA ORAL ORDER Petitioner is before this Court seeking the following prayers: “a) ISSUE A WRIT OF appropriate nature to set aside the orders dated.06.11.2024 at Annexure-D passed, in O.S.F.R.No.1429/2023 by the Principal Senior Civil Judge, Bengaluru Rural, Bengaluru and thereby fix a date for Petitioner's appearance and payment of court fee, and permit to prosecute the suit, in the ends of justice and equity; and b) Pass any other orders as deemed fit and proper in the ends of justice and equity.” 2. Heard learned Senior Counsel Sri.D.R.Ravishankar appearing for the petitioner and have perused the material on record. 3. A suit in O.S.No.1552/2012 is instituted seeking injunction restraining the respondent from alienating the properties in Sy.No.42/3 and 42/2 the suit schedule properties. - 3 - HC-KAR NC: 2025:KHC:36685 WP No. 22898 of 2025 The application is filed under Order VII Rule 10 of the Code of Civil Procedure seeking return of the plaint to be presented before the appropriate Court. The plaint is said to be presented before the appropriate Court. Before the appropriate Court, even before the notice is issued, the suit comes to be terminated by the following order: “Office Objection: Suit is for the relief of declaration & injunction. Hence, court fee and process fee not paid. For necessary order. No representation from plaintiff. Since filing of the suit no one appeared. It appears that plaintiff is not interested to proceed with the suit, hence the suit is dismissed for default. Sd/- 6/11 Prl. Senior Civil Judge, Bangalore Rural District, Bangalore 4. The matter was posted before the concerned Court on office objections. The office objections were that the court fee and process fee was not paid. On the same day, the concerned Court holds that no representation from plaintiff, since the filing of the suit, none has appeared and therefore, the suit is dismissed. - 4 - HC-KAR NC: 2025:KHC:36685 WP No. 22898 of 2025 5. Learned Senior Counsel places reliance upon the judgment rendered by the Coordinate Bench on identical circumstance in W.P.No.100870/2024 disposed on 14.02.2024. The Coordinate Bench has held as follows: "A suit in O.S.(FR) No.10/2024 had been filed by the petitioner seeking for specific performance of contract dated 19.07.2021, which was valued by the petitioner under Section 40(A) of the Karnataka Court Fees and Suit Valuation Act (hereinafter referred to as ‘the Act’ for brevity) and a sum of Rs.2,67,125/- was paid as Court Fee for the relief of specific performance. In the said suit, an additional prayer having been sought for being a declaration that two other sale deeds are null and void and not binding on the plaintiff, the office of the Senior Civil Judge and JMFC Hagaribommanahalli put up an office note that Court Fee would also have to be calculated as regards the declaration of sale deeds to be null and void in terms of Sub-Section (2) of Section 38 of the Act, 1958. 4. The matter being adjourned to hear on the same noticing that the petitioner was not represented, was adjourned to 23.01.2024 and on that date noticing that plaintiff was again not represented, the suit came to be dismissed as not maintainable. It is challenging same that the aforesaid reliefs have been sought for. 5. The issue of Court Fee being appropriate or not is not one which touches on the maintainability of a suit. At the most, the aspect of proper Court Fee not being paid would be one which is to be determined in terms of Order 7 Rule 11(b) of the Code of Civil Procedure, which provides for - where the relief claimed is undervalued, the plaintiff on being required by the Court to correct the valuation within the time fixed by the Court, failing to do so, then in that event the plaint could be rejected. It is this principle which the Trial Court ought to have applied, calculated the deficit Court Fee and called upon the plaintiff to make payment of the said deficit Court Fee within the time fixed by the Court and it is only in the - 5 - HC-KAR NC: 2025:KHC:36685 WP No. 22898 of 2025 event of the said deficit Court Fee not being paid, then the plaint could be rejected. 6. In the present case, even Order 7 Rule 11(b) of CPC would not be applicable for the reason that the plaintiff has sought for the relief of specific performance as also for declaration of sale deeds to be null and void and insofar as specific performance is concerned, proper Court Fee has been paid since no objection has been raised in that regard by the office of the Court. 7. Such being the case, there can be no partial rejection of the plaint. At the most, the relief sought for could have been refused by the Court on account of nonpayment of Court Fee which would have to be done after registering the case and following the due procedure. In the present case, the suit is dismissed as not maintainable on account of non-payment of Court Fee in terms of Sub-Section (2) of Section 38 of the Act, 1958, which for the aforesaid reason is not permissible. Hence I pass the following: ORDER i) Writ petition is allowed. ii) A certiorari is issued, the order dated 23.01.2024 passed by Senior Civil Judge in JMFC, Hagaribommanahalli in O.S.(FR) No.10/2024 is set-aside. The suit in O.S.(FR) No.10/2024 is restored. The Trial Court is directed to register the case and proceed with the said case in terms of the observations made above." 6. In the light of the judgment of the Coordinate Bench quoted supra, the petition deserves to succeed as the Coordinate Bench has considered the entire spectrum of law. - 6 - HC-KAR NC: 2025:KHC:36685 WP No. 22898 of 2025 7. For the aforesaid reasons, the following: O R D E R i) Writ petition is allowed. ii) A certiorari is issued, the order dated 06.11.2024 passed by the Principal Senior Civil Judge, Bengaluru Rural, Bengaluru, in O.S.F.R. No.1429/2023 is set-aside. The suit in O.S. F.R. No.1429/2023 is restored. The Trial Court is directed to register the case and proceed with the said case in terms of the observations made above. Sd/- (M.NAGAPRASANNA) JUDGE CBC List No.: 2 Sl No.: 33