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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF NOVEMBER, 2018
BEFORE
THE HON’BLE MR.JUSTICE K.N. PHANEENDRA
MFA NO.7023/2017 (CPC) BETWEEN SMT M VEENA WIFE OF HONNEGOWDA D/O LATE MADEGOWDA AGED ABOUT 41 YEARS R/AT NO 940, A. THIRTHANKARA ROAD, SIDDARTHANAGARA LAYOUT MYSURU – 570 011 ... APPELLANT
(BY SRI. BHASKAR HEGDE, ADV.) AND 1. SMT SUMA D/O LATE MADEGOWDA
W/O HONNEGOWDA R/O NO.62, SRI KRISHNA
MOSAIC TILES, BILAGUMBA CROSS NELAMANGALA ROAD, MANJUNATHA NAGARA RAMANAGARA TOWN – 571 511 2. SMT VIJAYAMMA W/O LATE MADEGOWDA AGED ABOUT 66 YEARS MUDAGERE VILLAGE MALUR HOBLI CHANNAPATNA TALUK – 571 501
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3. SRI M. SANTHOSH S/O LATE MADEGOWDA AGED ABOUT 35 YEARS MUDAGERE VILLAGE MALUR HOBLI CHANNAPATNA TALUK – 571 501 4. SMT NALINA M W/O LINGEGOWDA G. S. D/O LATE MADEGOWDA AGED ABOUT 43 YEARS NO.4088, 3RD CROSS SHANKARANAGAR CHAMUNDESHWARI TEMPLE STREET MANDYA CITY – 571 401 5. SMT RASHMI M W/O SHIVANNA D/O LATE MADEGOWDA AGED ABOUT 41 YEARS NO.294, BHAVYA MEDICAL & GENERAL STORES 7TH MAIN ROAD, NEAR BAJAJ SHOW ROOM 100 FEET ROAD, BSK III STAGE NEAR DEVEGOWDA PETROL BUNK BENGALURU 560 085 6. SMT PREETHI M W/O SURESH B D/O LATE MADEGOWDA AGED ABOUT 37 YEARS NO.887, III CROSS, E & F BLOCK AGNI HAMSA ROAD KUVEMPUNAGAR, MYSURU-570 012 7. SMT PALLAVI M W/O SHIVAKUMARA
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D/O LATE MADEGOWDA NO.1194 III MAIN, MANASANAGARA NAGARABHAVI, BENGALURU-560 072 8. THE MANAGING DIRECTOR
INDIAN TELECOM DEPARTMENT ABHINAY COMPLEX, BVK IYENAGAR ROAD, BENGALURU, PRESENTLY THE GENERAL MANAGER
(NWP-CFA), OFFICE OF PGM, BSNL BANGALORE TELECOM DISTRICT TELEPHONE HOUSE, 5TH FLOOR CTO COMPLEX, RAJ BHAVAN ROAD BENGALURU-560 001 9. STATE BANK OF MYSORE MUDUGERE BRANCH MUDUGERE, CHANNAPATNA TALUK 571 501 10. SMT B S VYSHALI W/O N NARENDRA KUMAR AGED ABOUT 46 YEARS NO.606 B.H.C.S. LAYOUT WARD NO.182 8TH MAIN UTTARAHALLI VILLAGE BANGALORE SOUTH TALUK -560 061 ... RESPONDENTS
THIS MFA IS FILED UNDER ORDER 43 RULE (1)(a)
OF CODE OF CIVIL PROCEDURE 1908 PRAYING TO ALLOW
THIS APPEAL AND SET ASIDE THE ORDER DATED
18.07.2017 PASSED BY THE III ADDL.DISTRICT AND
SESSIONS JUDGE, RAMANGARA ON I.A.NO.3 IN
R.A.NO.60/2016 AND CONSEQUENTLY DISMISS THE SAID
APPLICATION.
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THIS MFA HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 05.10.2018 COMING ON FOR ‘PRONOUNCEMENT OF JUDGMENT, THIS DAY K.N. PHANEENDRA, J. DELIVERED THE FOLLOWING:
J U D G M E N T
The appellant has preferred this appeal against
the order passed on IA No.III by the III Additional
District and Sessions Judge, Ramanagara in
R.A.No.60/2016 dated 18.7.2017 in holding that, the
said Court has no pecuniary jurisdiction to try the
appeal and consequently returned the appeal to the
appellant (plaintiff No.1 in O.S.No.80/2012) to present
the same before the High Court of Karnataka, as the
valuation of the subject matter of the suit and appeal
exceeds Rs.10,00,000/- (Rupees Ten Lakhs) only.
2. The Registry, after filing of the appeal has
raised objections with regard to the jurisdiction of this
Court as the subject matter is less than Rs.10,00,000/-
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and the appeal is also not maintainable under Order
XLIII Rule 1(a) of CPC.
3. Keeping open the said office objection, the
matter was posted for hearing the counsel’s submission
regarding the maintainability of the appeal.
4. No notices have been issued to the respondents
as the maintainability of the appeal itself has been
questioned in this appeal.
5. The first objection raised by the office is that
the appeal is not maintainable under Order XLIII Rule
1(a) of CPC because of the simple reason that the
Appellate Court i.e. the III Additional District and
Sessions Judge, Ramanagara, has returned the appeal
for proper presentation before the appropriate court.
Therefore, the said order virtually falls under Order VII
Rule 10 of CPC, though specifically the provision has
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not been mentioned by the III Additional District Judge
while returning the memorandum of appeal.
6. Order XLIII Rule 1(a) of CPC refers to the
appeals to the Appellate Courts and as it is, the order
passed by the III Additional District Judge,
Ramanagara, the next appellate court would be the
High Court. However, Order VII Rule 10 of CPC refers
to return of plaint which is mutatis mutandis applicable
to appeals also. Therefore, the said objection of the
office deserves to be overruled.
7. The next question which arose for consideration
after hearing the learned counsel for the appellant is
that –
‘Whether the Trial Court order is
proper and correct in returning the
appeal for proper presentation before the
High Court?’.
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8. In order to consider this particular aspect, it is
just and necessary to have the brief factual matrix of
this case:
The appellant before the District Court-
Smt.M.Veena and another by name Smt.Suma have
jointly filed a suit in O.S.No.80/2012 for partition and
separate possession of their joint legitimate share in the
suit schedule property and sought for partition of their
2/8th joint share, valuing the joint share at
Rs.14,30,500/- for the purpose of jurisdiction. The said
suit is partly dismissed to the effect that, the plaintiffs
claim over the suit item Nos.3, 13, 19, 25, 26, 29, 36,
42 in ‘A’ schedule properties and ‘B’ suit schedule
properties were dismissed. However, the suit of the
plaintiff Nos.1 and 2 is decreed to the extent of 9/64th
share in item Nos.1, 2, 4-12, 14-18, 20 to 24, 27, 28, 30
to 35, 37 to 41, 43, 44 and 45 in ‘A’ schedule properties,
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against which judgment and decree, the first plaintiff-
Smt.Veena has preferred an appeal in R.A.No.60/2016
before the III Additional District and Sessions Judge,
Ramanagara, bifurcating her share and valuing the
appeal for a sum of Rs.7,15,250/- being the first
plaintiff’s share in the suit schedule property. The first
plaintiff felt that, the value is less than Rs.10,00,000/-.
Therefore, the appeal was preferred before the District
Judge, Ramanagara.
9. It is also pertinent to note here that aggrieved
by the same judgment and decree, defendants 1 and 2
Smt.S.Vijayamma and M.Santhosh have preferred an
appeal before this Court in RFA No.1815/2016 valuing
the subject matter of the suit as valued by the plaintiffs
before the Trial Court for the purpose of jurisdiction for
a sum of Rs.14,30,000/-.
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10. In this background, court has to examine
whether the order passed by the III Additional District
and Sessions Judge in R.A.No.60/2016 is proper and
correct?
11. Both the appeals are before this Court i.e.,
MFA 7023/2017 and RFA 1815/2016. Therefore, the
materials available in RFA 1815/2016 i.e., with regard
to the valuation slip, decree passed by the trial Court
and the plaint averments have to be looked into by this
Court for the purpose of considering the appeals.
12. Learned counsel for the appellant in this
regard strenuously contended that the learned District
Judge has committed serious error in returning the
Memorandum of Appeal holding that, the plaintiffs
cannot bifurcate their shares and file the appeal before
the Sessions Court at Ramanagara. They relied upon
the provisions of Section 35(2) of the Karnataka Court-
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Fees and Suits Valuation Act, 1958 (for brevity
hereinafter referred to as ‘the KCF & SV Act’) for the
purpose of arguing that individual share of the plaintiffs
has to be taken into consideration for the purpose of
Court fee and jurisdiction. Therefore, it is contended
that the plaintiffs share i.e., the first plaintiff’s share in
the suit schedule property can be individually valued at
Rs.7,15,250/- as the plaintiff's in the original suit
valued the joint share of plaintiffs 1 and 2 at
Rs.14,30,500/-. Therefore, it is the plaintiff’s individual
right to file an appeal as per their wish if they did not
intend to prefer an appeal jointly. Therefore, the appeal
was very well maintainable before the District Court.
Therefore, returning of the Memorandum of Appeal is
bad in law.
13. In order to appreciate the above said aspects,
it is just and necessary to look into the plaint averments
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as culled out in the judgment passed by the trial Court.
As per the plaint, the plaintiffs’ have jointly claimed
partition and separate possession of their joint share in
the suit ‘A’ and ‘B’ schedule properties. The judgment
and decree of the trial Court also shows that, the decree
was passed considering the joint share of plaintiff Nos.1
and 2 to the extent of 9/64th share in some of the
properties as noted above. Even the valuation slip filed
in O.S.No.80/2012 in respect of both the plaintiffs
clearly discloses that, they have categorically stated
that, they have filed the suit for the relief of partition
and separate possession of their legitimate joint share
in the suit schedule properties and they have valued the
suit stating that the plaintiffs’ together are entitled for
2/8th share and their joint share was valued at
Rs.14,30,500/- and paid the fixed court fee as per
Section 35(2) of the KCF & SV Act.
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14. The learned counsel for the appellant
strenuously contends before this court that if the
provision of Section 35(2) of the KCF & SV Act, 1958 is
meaningfully and properly read, it is the single
plaintiff’s individual share has to be calculated for the
purpose of Court fee and Jurisdiction, though the
plaintiffs have jointly prayed for the decree, but they
can very well bifurcate their share and file appeal before
the appellate court.
15. In this regard, now let me consider the
provision of Section 35 of the KCF & SV Act which reads
as follows :-
“35. PARTITION SUITS: (1) In a
suit for partition and separate possession
of a share of joint family property or of
property owned, jointly or in common, by a
plaintiff whose title to such property is
denied, or who has been excluded from
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possession of such property, fee shall be
computed on the market value of the
plaintiff’s share.
(2) In a suit for partition and separate
possession of joint family property or
property owned, jointly or in common, by a
plaintiff who is in joint possession of such
property, fee shall be paid at the following
rates:
Rupees fifteen if the value of
plaintiff’s share is Rs.3,000 or less;
Rupees thirty if the value is above
Rs.3,000 but not more than
Rs.5,000;
Rupees one hundred if the value
is above Rs.5,000 but below
Rs.10,000 and
Rupees two hundred if the value
is Rs.10,000 and above.
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(3) Where, in a suit falling
under sub-section (1) or sub-section
(2), a defendant claims partition and
separate possession of his share of
the property, fee shall be payable on
his written statement computed on
half the market value of his share or
at the rates specified in sub-
section(2), according as such
defendant has been excluded from
possession or is in joint possession.
(4) Where, in a suit falling
under sub-section (1) or sub-section
(2), the plaintiff or the defendant
seeks cancellation of decree or other
document of the nature specified in
section 38 separate fee shall be
payable on the relief of cancellation
in the manner specified in that
section.”
(emphasis supplied to the relevant words)
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16. On a plain meaningful and meticulous
reading and understanding of the above said provision,
it clearly discloses that if a suit is filed for partition and
separate possession of a particular share in joint family
property, fee shall be computed on the market value of
the plaintiff’s share.
17. The using of the word “plaintiff’s share”
indicates that it is the plaintiff’s individual share which
is the subject matter for the purpose of jurisdiction and
the court fee. Even under Section 35(2) of the KCF &
SV Act, in a suit for partition and separate possession of
a joint family property filed by the plaintiff, who is in
joint possession of the property, fee shall be computed
and fixed court fee has to be paid. The learned counsel
mainly concentrated on the words used i.e., ‘a plaintiff’
and ‘plaintiffs’ as emphasized and contended that it is
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individual and single plaintiff’s share has to be taken
into consideration.
18. In my opinion, the said argument of the
learned counsel is not tenable. When the plaintiffs
themselves do not want at the time of filing of the suit
for bifurcation of their separate share and they want the
court to declare their joint share in the suit property,
that shows that they would like to continue jointly so
far as their joint share is concerned i.e. 2/8th share as
claimed by the plaintiffs jointly in O.S.No.80/2012. The
Court cannot direct the parties to claim the share in
their individual capacity or not to claim the share
jointly. The plaintiffs are the masters of their case and
it is their will and wish either to take individual and
separate shares or to take joint shares and to live
happily and jointly together in their life.
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19. Therefore, when the Court cannot mandate
the plaintiffs to value the suit in a particular manner, it
is the valuation that has been made by the plaintiffs
that has to be taken into consideration. Therefore, it is
clear that if the plaintiffs are more than one and if they
claim individual share then they can join as plaintiffs in
the plaint and then each plaintiffs’ share has to be
individually calculated and jurisdiction can be
ascertained for the purpose of court fee and jurisdiction
to the extent of each plaintiffs individual share.
However, if the plaintiffs jointly claim their share in the
suit schedule property, in that eventuality, the multiple
plaintiffs who claim joint share, all the plaintiffs will
become one component for the purpose of court fee and
jurisdiction and they all constitute singe plaintiff so as
to understand the words ‘a plaintiff’ and ‘plaintiffs’ as
used in the above provision under Section 35 of the KCF
& SV Act.
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20. It can very well be illustrated by the following
illustration.
“If a joint family consisting of a father
and four sons; father and three sons would
like to continue jointly with respect to the joint
family properties and they had no intention to
separate themselves. However, one of the
sons do not want to continue in the joint
family but he do not want to file any suit
against his father and other brothers. In
order to set at rest the differences between
them, the father and three brothers
themselves file a suit for declaration of their
joint share in the suit schedule property and
to declare the share of the defendant in the
suit schedule property and to give a share of
the son who would like to go out from the
family.”
21. In the above situation, can the Court say that
the plaintiffs cannot get declaration of their joint share
in the suit schedule property and direct them to file a
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suit for their individual share and value the suit
individually of each plaintiff for the purpose of court fee
and jurisdiction and to pay court fee? Certainly the
court cannot direct the plaintiffs in such a manner.
Plaintiffs are the masters of their case, they can file the
suit seeking any relief under any law which provides
them to file their suit. Therefore, in such an
eventuality, all the plaintiffs i.e. father and other three
sons in the above illustration form a common
component i.e., single component as per the word ‘a
plaintiff’ and the word ‘plaintiffs’. In such an
eventuality the joint share claimed by them has to be
evaluated for the purpose of court fee and jurisdiction.
Therefore, the said provision cannot be in any manner
be interpreted.
22. Now, coming back to the present case, as I
have already narrated the plaintiffs together claimed
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joint share to the extent of 2/8th share and their share
was valued at Rs.14,30,500/-. For the purpose of
preferring an appeal, Section 49 of the KCF & SV Act
will come into play which reads as follows :
“49. APPEALS: Save as provided in
section 48, the fee payable in an appeal shall
be the same as the fee that would be payable
in the court of first instance on the subject
matter of the appeal.
Provided that, in levying fee on a
memorandum of appeal against a final decree
by a person whose appeal against the
preliminary decree passed by the court of first
instance or by the court of appeal is pending,
credit shall be given for the fee paid by such
person in the appeal against the preliminary
decree.
EXPLANATION (1): Whether the appeal
is against the refusal of a relief or against the
grant of the relief the fee payable in the
appeal shall be the same as the fee that
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would be payable on the relief in the court of
first instance.
EXPLANATION(2): XXXX
EXPLANATION(3): XXXX
EXPLANATION(4): Where the relief
prayed for in the appeal is different from the
relief prayed for or refused in the court of first
instance, the fee payable in the appeal shall
be the fee that would be payable in the court
of first instance on the relief prayed for in the
appeal.
EXPLANATION(5): XXXX”
(emphasis supplied)
23. Section 49 of the Act makes it abundantly
clear that, in an appeal the fee shall be the same as the
fee that would be payable in the Court, for the first
instance on the subject matter of the appeal. Therefore,
what is the subject matter in the appeal and the subject
matter before the trial Court has to be taken into
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consideration for the purposes of computing the court
fee and jurisdiction. In this regard, Explanation (1) &
(4) play a dominant and important role, where it says
that, whether the appeal is against the refusal of a relief
or against the grant of the relief, the fee payable in the
appeal shall be the same as that of the fee that would be
payable on the relief in the court at the first instance.
Therefore, whether the suit is fully decreed, partly
decreed, partly dismissed or fully dismissed, it makes
no difference for the purpose of evaluating the subject
matter for the purpose of court fee and jurisdiction.
Therefore, it is clear from the above said provision that
for all practical purposes, the Court has to consider
what is the evaluation made by the plaintiffs at the first
instance before the Trial Court and the same shall be
treated as the evaluation for the purpose of court fee
and jurisdiction in order to ascertain the appellate
jurisdiction.
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24. Though the learned counsel for the appellant
relied upon various rulings, but none of the rulings are
on the above said point. Therefore, in my opinion, the
Court has to consider the valuation made by the
plaintiffs jointly before the Trial Court for the purpose of
court fee and jurisdiction. As I have already narrated,
the plaintiffs have evaluated their share jointly for the
purpose of jurisdiction at Rs.14,30,500/- which is the
subject matter of the suit before the trial Court and as
well as before the Appellate Court. Therefore, the
plaintiff No.1 cannot alone bifurcate her share for the
purpose of entrusting the appellate jurisdiction to the
Principal District and Sessions Judge. It is the value
that has been made by the plaintiffs jointly before the
trial court has to be taken into consideration for the
purpose of vesting the appellate jurisdiction. If the first
plaintiff alone would like to file any appeal, then also
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the total value of the subject matter before the trial
Court has to be taken into consideration for the purpose
of preferring an appeal.
25. Therefore, under the above said facts and
circumstances, I do not find any strong reasons to
interfere with the order passed by the Appellate Court
i.e. the III Additional District and Sessions Judge,
Ramanagara, in holding that the appeal was not
maintainable in view of the evaluation made before the
Trial court evaluating the plaintiffs’ joint share at
Rs.14,30,500/-.
26. There is no dispute by the appellant’s counsel
that if the value of the share of the plaintiffs, is less
than Rs.10,00,000/-, then the District Court would get
jurisdiction to deal with the appeal as the judgment and
decree is passed by the Senior Civil Judge and JMFC,
Channapatna. It is also not in dispute that if the value
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of the subject matter of the suit exceeds
Rs.10,00,000/-, the appeal is maintainable before the
Single Bench of the High Court and upto the value of
Rs.15,00,000/- and above the appeal has to be
preferred before the Division Bench of the High Court.
27. The following guidelines though not
exhaustive but are necessary to be formulated for the
purpose of guidance to the trial Courts in evaluating the
suit for the purpose of court fee and jurisdiction:
(1) Payment of Court fee fixing the jurisdiction of
the Courts will depend on plaint averments alone.
Neither the averments in the written statement, nor the
evidence nor the final decision have a bearing on the
decision relating to court fee.
(2) The plaintiff in a suit being dominus litis has
the choice of filing a suit of a particular nature or seek a
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particular relief. Neither the defendant nor the court
can alter or change the nature of the suit as one for a
different relief as the suit is filed under different
category and require the plaintiff to pay court fee on
such altered category of suit, unless the plaintiff himself
seeks for the same by way of an amendment.
(3) The trial Courts should always insist for
separate evaluation of the subject matter of the suit for
the purpose of court fee and jurisdiction. In order to
avoid confusion in the jurisdiction of the appellate
court, the value of the Court fee and jurisdiction in a
partition suit are to be evaluated depending upon the
facts and circumstances of each case. If the valuation
slip is found to be incorrect or incomplete, the plaintiff
shall be required to set it right before registration of the
suit or within and specified time if the suit is already
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registered. The trial court or appellate courts should
take care in properly directing the office in this regard.
(4) If the plaintiffs claim their joint share
without asking for individual separate share, then in
such an event, the joint share of the plaintiffs becomes
the subject matter of the suit and for appeal, then suit
should be valued for the purpose of court fee and
jurisdiction on the joint share of the plaintiffs, if the
plaintiffs are more than one.
(5) If the plaintiffs are more than one, but they
claim their individual and separate share to be declared,
in such an eventuality, for the purpose of court fee, they
have to pay the court fee on their individual share
separately, but for the purpose of jurisdiction the
largest share amongst the plaintiffs becomes the subject
matter of the suit, therefore, in such an eventuality,
single largest share of the plaintiff has to be taken into
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consideration as subject matter of the suit for the
purpose of jurisdiction of the court.
(6) Whether the suit is fully decreed as prayed
for, partly decreed or partly dismissed or fully
dismissed, it makes no difference so far as the subject
matter of the suit is concerned and even for the
purpose of appellate jurisdiction. The evaluation made
by the plaintiff at the first instance before the trial Court
shall be treated as the evaluation of the subject matter
of the suit and Appeal for the purpose of court fee and
jurisdiction.
(7) In a partition suit whether the relief prayed
for in the appeal is different, the relief prayed for, for the
first instance, for the purpose of appellate jurisdiction,
the subject matter of the suit would be taken into
consideration for the purpose of court fee and
jurisdiction.
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(8) So far as counter claims are concerned, the
counter claim shall not exceed the pecuniary
jurisdiction of the court in which the plaint is
presented. In a decree passed in a suit in which set off
or counter claim is claimed can be subject to the same
provision in respect of an appeal, which would have
been subject to the condition that if no set off or counter
claim had been claimed. Therefore, appeals from
decrees relating to the set offs or counter claim shall lie
to the court to which the appeal in respect of the
subject matter of the plaint would lie.
(9) The amount or value of the subject matter of
the original suit or proceeding of a civil nature, found in
sub Section (1) of Section 19 of CPC relates to such
amount or value of the subject matter meant for
determining the pecuniary jurisdiction of the court and
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not that meant for computing court fee payable thereon
under the Court Fees Act.
(10) If the subject matter of the appeal is different
from that of the subject matter of the suit, then the
appellate court before entertaining the appeal has to
hear and consider the said point as a preliminary point
for the purpose of ascertaining its jurisdiction.
28. Though the above said guidelines are not
exhaustive, but, they are to be borne in mind while
dealing with the original and appellate jurisdiction of
the courts.
29. In view of the above said elucidation of the
factual matrix and legal position, the order passed by
the III Additional District and Sessions Judge,
Ramanagara, in returning the Memorandum of Appeal,
is no way illegal and the same is proper and correct.
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Under the above said circumstances, the
Miscellaneous First Appeal is dismissed as devoid of
merits.
Sd/-
JUDGE PL*