Hi,
Karnataka Hight court in case of “B.S.Malleshappa Vs. Koratagere B. Shivalingappa and Others” laid down the following principle
(i) The plaintiff in a suit being dominus litis has the choice of filing a suit of a particular nature or seek a particular relief. Neither the defendant nor the Court can alter the suit as one for a different reliefer as a suit falling in a different category and require the plaintiff to pay Court fee on such altered category of suit.
(ii) If the plaintiff claims that he is in joint possession of a property and seeks partition and separate possession, he categorises the suit under Section 35(2) of the Act. He is therefore liable to pay Court fee only under Section 35(2). If on evidence, it is found that he was not in joint possession, the consequence is that the relief may be refused in regard to such property or the suit may be dismissed. But the question of Court treating the suit as one falling under Section 35(1) of the Act and directing the plaintiff to pay the Court fee under Section 35(1) of the Act does not arise. Even after written statement and evidence (which may demonstrate absence of possession or joint possession), if the plaintiff chooses not to amend the plaint to bring the suit under Section 35(1) and pay Court fee applicable thereto, he takes the chance of suit getting dismissed or relief being denied.
Is there any similar finding from the supreme court on the court fee? If so can you please let me know the case details.
Thanks and Regards,
