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2003 DIGILAW 1449 (AP)

Panjala Balaraju v. C. Janaiah Yadav

2003-11-24

P.S.NARAYANA

body2003
( 1 ) THE petitioners herein filed O. S. No. 34/2001 on the file of XIII Additional chief Judge-Fast Track Court, City Civil court, Hyderabad for partition and separate possession of the plaint schedule properties. Defendants 3 to 5 in the suit filed their respective written statements and on the respective pleadings of the parties, the Court had settled the Issues, Issue No. 6 being "whether the plaintiffs paid proper and sufficient Court fee under law". The petitioners/plaintiffs also filed affidavit relating to Chief Examination and defendants 1 and 2 had cross-examined P. W. 1 and when the matter was adjourned for the purpose of defendants 3 to 5 in the suit to cross-examine after requesting for certain adjournments ultimately an application I. A. No. 8/2003 in O. S. No. 34/2001 was filed under section 4 (ii) of A. P. Court Fees and Suits valuation Act, 1956, in short hereinafter called as "act" and the learned Judge allowed the said application posting the matter for decision on Issue No. 6 as preliminary issue. Aggrieved by the same, the present Civil revision Petition is filed. ( 2 ) SRI Chakravarthi, the learned Counsel representing the Revision petitioner submitted that the averments made in the plaint are that the plaintiffs are in joint possession of these properties with the defendants though the contesting defendants had taken a stand that the plaint schedule properties are in possession of third parties. The learned Counsel would submit that in view of the fact that this by itself is a controversial question to be decided on adducing evidence by both the parties, especially at this stage when P. W. 1 is already in the witness box, it would not be desirable to decide Issue No. 6 as a preliminary Issue. The learned Counsel also had drawn my attention to Section 4 (ii) of the Act and section 11 (2) of the Act and also to Order 14 rule 2 of the Code of Civil Procedure in this regard. The learned Counsel also had drawn my attention to Section 4 (ii) of the Act and section 11 (2) of the Act and also to Order 14 rule 2 of the Code of Civil Procedure in this regard. ( 3 ) THE Counsel representing the respondents had justified the order on the ground that the Court Fee involved is very heavy and when the plaintiffs are not in possession of the plaint schedule property at all and the concerned defendants in relation to which the joint possession is pleaded also are not in possession of these properties, the proper provision is Section 34 (1) of the Act and not Section 34 (2) of the Act and hence there is no point in further proceeding with the main suit unless and until this question is decided. ( 4 ) HEARD both the Counsel. ( 5 ) RESPONDENTS 1 to 3 herein as petitioners moved the XIII Additional Chief Judge-Fast track Court, City Civil Court, Hyderabad in o. S. NO. 34/2002 by filing I. A. No. 8/2003 under Section 4 (ii) of the Act to decide the payment of proper Court Fee as preliminary issue and directing the plaintiffs to pay Court fee of Rs. 1,71,276/- on the valuation of rs. 1,68,75,000/- within time to be fixed by the said court and in the event of their failure to pay the same, to reject the plaint, on the said application, the learned Judge made the following order:"heard both sides. It is the contention of the petitioners that the suit land is not a vacant land as contended in the plaint and that buildings are come up in the suit land and hence the suit land is very valuable. Further it is to the case of the petitioners that the 3rd parties are in possession of the suit land by securing the buildings and thereby the provision of Court fee act mentioned in the plaint is not applicable. Hence it is proper to decide this issue of payment of Court fee as preliminary issue before other issues are settled. Hence I allow the application and post the matter for the decision of issue No. 6 as preliminary issue. Thus petition allowed. No costs. "it is not in controversy that the suit was instituted in the year 2001 and the Issues were settled. Hence I allow the application and post the matter for the decision of issue No. 6 as preliminary issue. Thus petition allowed. No costs. "it is not in controversy that the suit was instituted in the year 2001 and the Issues were settled. The Chief Examination of p. W. 1 was already filed and P. W. 1 also was partly cross-examined. It is pertinent to note that this application was not filed under section 11 (2) of the Act, but under section 4 (ii) of the Act. Be that as it may, the application was thought of definitely at a belated stage. I had given my anxious consideration to the respective pleadings of the parties and also the Issues which had been settled for trial in the suit. It is asserted by the plaintiffs that they are in joint possession, which no doubt had been denied to the effect that third parties are in possession, by the contesting defendants. These are aspects to be decided after letting in evidence by both the parties. Section 4 (ii) of the Act reads:"no document which is chargeable with fee under this Act shall- (ii) be filed, exhibited or recorded in any public office, or be acted on or furnished by any public officer, except on payment of the fee chargeable in respect of such document under this Act: provided that a document in respect of which the proper fee has not been paid may be filed or exhibited in a Criminal court if the Court deems it necessary in the interests of justice to do so. " order 14 Rule 2 of the Code of civil Procedure dealing with Court to pronounce Judgment on all Issues, specifies as hereunder: (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues. " order 14 Rule 2 of the Code of civil Procedure dealing with Court to pronounce Judgment on all Issues, specifies as hereunder: (1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, 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 issue in accordance with the decision on that issue. "it is a case involving the question of payment of Court fee simpliciter. Since in view of the respective pleadings of the parties, the aspect of joint possession, asserted by one party and denied by other party also is the crucial question clearly interlinked with the issue of court Fee, such an Issue, normally may have to be tried along with the other Issues and to be answered at the time of final disposal of the suit and need notbe directed to be decided as a preliminary Issue especially at a belated stage when P. W. 1 was already partly examined. In Y. Veerareddi and others v. Y. Panduranga Reddi while dealing with the question of payment of Court Fee and trying the same as preliminary Issue under section 11 (2) of the Act, this Court held that when such preliminary issue encroaches upon other important and relevant Issues and does not involve the question of jurisdiction, such Issue relating to the question of Court Fee cannot be tried as a preliminary Issue. I am thoroughly satisfied that the approach adopted by the learned judge making a cryptic order directing the issue relating to the Court Fee to be tried as a preliminary Issue at a belated stage definitely cannot be sustained. ( 6 ) IN view of the same, the impugned order is hereby set aside and the Civil revision Petition is allowed. No costs.