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2001 DIGILAW 686 (PNJ)

Banarsi Das v. Balwant

2001-07-13

M.M.KUMAR

body2001
JUDGMENT M.M. Kumar, J. - This revision petition is directed against the order dated 4.11.1993 passed by the Sub-Judge Ist Class, Jind (the Court was presided by Shri H.P. Singh, HCS at that time). The trial Court while treating issue No. 6 as preliminary issue concerning the valuation of the suit for the purposes of Court-fee directed the plaintiffs to make the deficiency of the Court-fee within a months time i.e. by 6.12.1993. Against that order, the present revision petition has been filed. 2. When notice of motion was issued on 3.12.1993, it was ordered that the petitioners were not required to deposit the Court-fee till further orders. Thereafter, the petition was admitted on 25.1.1994 and the interim order was allowed to continue. 3. The plaintiffs-petitioners filed a suit for possession regarding agricultural land measuring 5 1/2 marlas comprised in Khewat No. 34 Khatoni No. 34 min Khasra No. 209 min East as per Jamabandi for the year 1988-89 situated in revenue estate of Hathwala, Tehsil and District Jind. They claimed that the land was owned and possessed by plaintiff and proforma-respondent which have been illegally occupied by the defendant and a house has been constructed on that land. They further prayed that the illegal construction raised by the defendants may be removed and they may be delivered possession of the land. The learned trial Court after completion of pleadings framed the issues. Issue No. 6 was concerning payment of Court-fee. The trial Court treating issue No. 6 as preliminary, issue concluded that the value of the property on the basis of the market value was more than Rs. 50,000/- as there is construction of a house which comprises two rooms and one big varandaha. Therefore, the Court-fee has to be affixed according to the market value of the land plus the house. 4. I have heard Shri R.N. Lohan, learned counsel for the petitioners and Shri Shamsher Singh, learned counsel for the respondents and have with their assistance gone through the record. 5. Shri R.N. Lohan, learned counsel for the petitioners makes two fold submissions. Firstly, he contends that his prayer in the suit is for possession of 5 1/2 marlas of agricultural land comprised in Khewat No. 34, Khatoni No. 34 main khasra No. 209 min East as per Jamabandi for the year 1988-89 situated in revenue estate of Hathwala, Tehsil and District Jind. Firstly, he contends that his prayer in the suit is for possession of 5 1/2 marlas of agricultural land comprised in Khewat No. 34, Khatoni No. 34 main khasra No. 209 min East as per Jamabandi for the year 1988-89 situated in revenue estate of Hathwala, Tehsil and District Jind. He further submits that a prayer has also been made in the suit that the illegal construction raised by the defendants be demolished and the petitioners be delivered possession of the land. In support of his submission, the learned counsel has cited three Division Bench judgments reported as Kewal Kishore v. Hamad Ahmad Khan and others, AIR 1959 Punjab 181; Abdul Ghani v. Vishunath, AIR 1957 All 337 and Laxminarayan and others v. Shivanarayan, AIR 1968 MP 74. His second submission is that the question of Court-fee is to be determined by taking into consideration the allegations made in the plaint. In other words, the learned counsel submits that once the plaintiff has not asked for possession of the house and the other construction, the question of compelling him to pay the Court-fee by including the value of house raised on the land does not arise. For this proposition, he relied on a judgment of the constitution Bench of the Supreme Court in the case of S. Rm Ar. S. Sp. Sathappa Chettiar v. S. Rm. Ar. Rm. Ramanathan Cheettair, AIR 1958 SC 245. 6. On the other hand, Shri Shamsher Singh, learned counsel for the respondents, submitted that in view of the Haryana amendment (as amended by Haryana Act 22 of 1974) in the Court-Fee Act, 1970, the petitioner is bound to pay the Court-fee on the land as well as on the house. For this proposition, he relied on a judgment of this Court in the case of Pardeep Kumar and another v. Biru alias Bir Bhan and others, 1979 RLR 176. 7. I have carefully considered the submissions made by the learned counsel for the parties and I am of the view that the revision petition deserves petition deserves to be allowed. Taking the second argument of Shri R.N. Lohan first, there is hardly any doubt left that the question of Court-fee has to be considered in the light of the allegations made in the plaint. Taking the second argument of Shri R.N. Lohan first, there is hardly any doubt left that the question of Court-fee has to be considered in the light of the allegations made in the plaint. A Constitution Bench while dealing with this aspect in Sathappa Chettiars case (supra) has observed as under (as carried from head note (d)) :- "The question of Court-fees must be considered in the light of the allegations made in the plaint and its decision cannot be influenced either by the pleas in the written statement or by the final decision of the suit on the merits." 8. The second argument of Sri Lohan also merits acceptance. Various judgments cited by Shri Lohan squarely supports the proposition which arises for consideration in this case. All the three judgments rendered by Division Benches of the Punjab and Haryana High Court, Allahabad High Court and Madhya Pradesh High Court lend substantial support to the argument of Shri Lohan. A Division of this Court in Kewal Kishores case (supra) concluded as under : "The Court-fee payable in such a suit cannot be dependent upon the defence which may be raised and we are unable to understand how the existence of improvements can compel the plaintiff to pay Court-fee on something which he does not claim and which the defendants are entitled to remove or regarding which they may or may not in equity be entitled to claim any compensation; If the defendants have erected buildings on the land, the transaction regarding which was liable to be impugned by the plaintiff or is successfully impugned by him, they cannot by this reason alone compel the plaintiff to pay Court-fee on the cost of buildings which have been erected by them. Findings of the learned trial Court on issue No. 2 are, therefore, clearly erroneous." 9. There is another aspect of the matter under Order 14 Rule 2 of the Code of Civil Procedure, 1908 (for short the Code) the Civil Court is under an obligation to pronounce judgment on all the issues. Provisions of Order 14 Rule 2 of the Code after amendments of 1976 reads as under :- "Court to pronounce judgment on all issues. (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court subject to the provisions of sub-rule (2), pronounce judgment on all issues. Provisions of Order 14 Rule 2 of the Code after amendments of 1976 reads as under :- "Court to pronounce judgment on all issues. (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court subject to the provisions of sub-rule (2), pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to - (a) the jurisdiction of the Court, or (b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issues." 10. A perusal of the above Rule shows that the legislature by adding non-obstanate clause has mandated that the Court must pronounce judgment on all issues subject to exceptions carved out in sub-rule 2. However, the provisions of sub-rule 2 dealing with the jurisdiction of the Court or the bar of the suit created by any law do not arise for the consideration of the Court. Therefore, I am of the view that in the first instance, the learned trial Court should not have treated the issue of Court-fee as a preliminary issue. All the issues under sub-rule 1 of Rule 2 of Order 14 of the Code should have been decided. The learned trial Court committed a substantial error in law by deciding issue No. 6 concerning the Court-fee as a preliminary issue. For this proposition of law, I draw support from a judgment of this Court delivered in the case of Hardwari Lal v. Pokhar Mal, (1978)80 P.L.R. 252. 11. Shri R.N. Lohan, learned counsel for the petitioners, stated at the Bar that proceedings in the trail Court were adjourned sine-die in view of the pendency of the present revision petition. 12. In view of the above, this petition is allowed. The order dated 4.11.1993 passed by the trail Court is set aside. The parties through their counsel are directed to appear before the trial Court on 8.8.2001. 12. In view of the above, this petition is allowed. The order dated 4.11.1993 passed by the trail Court is set aside. The parties through their counsel are directed to appear before the trial Court on 8.8.2001. As the suit is pending for the last about eight years, I deem it appropriate to direct the learned trial Court to decide the case as expeditiously as possible but not later than 31.8.2002. No order as to costs. Petition allowed.