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2006 DIGILAW 1372 (RAJ)

Suresh Yadav v. Sanjay Kumar Sharma

2006-04-27

DALIP SINGH

body2006
Judgment Dalip Singh, J.-In this writ petition, the petitioner has challenged the order Annexure-7 whereby his application for deciding issue No. 4 relating to Court fee as a preliminary issued in terms of Order 14 Rule 2 read with Order 7 Rule 11 CPC has been dismissed on the ground that since the evidence of parties has commenced and the said issue would decided alongwith the other issues. 2. Learned Counsel for the petitioner has relied upon the Judgment of this Court in the case of Smt. Kamla & Anr. vs. Shri Ramesh Chandra & Ors., reported in 2002 (4) WLC 321 (Raj.) wherein this Court in Para 15 has held that the issue with regard to the valuation of the suit and the Court fee paid thereon requires to be decided as a preliminary issue because if such an issue is decided at a final stage after recording the evidence etc. and hearing of the arguments and the Court comes to the conclusion that the suit had been under-valued and or properly valuation it did not have pecuniary jurisdiction over the matter, it would return the plaint to present it before the Court of competent jurisdiction . It will be wastage of time and labour of the Court and great injustice to the opposite party. 3. At the same time, it has also been held that it is obligatory for the Court to decide the issue of law a preliminary issue. 4. The aforesaid Judgment was cited before the learned trial Court but the learned trial Court while agreeing with the case of the plaintiff has curiously enough held that issue with regard to the valuation and Court fee paid thereon would be decided subsequently and not as a preliminary issue only because the evidence of plaintiff has commenced. 5. Having heard learned Counsel for the parties and perused the impugned order, I am of the view that the fact that evidence has commenced would not alter the situation on the basis of the principles laid down in the Judgment of Smt. Kamla & Ors. (Supra), as a crucial question is that the issue with regard to valuation and Court fee to be paid thereon as held by this Court deserves to be decided as a preliminary issue so as to avoid wastage of time. (Supra), as a crucial question is that the issue with regard to valuation and Court fee to be paid thereon as held by this Court deserves to be decided as a preliminary issue so as to avoid wastage of time. In case the said issue is decided against the plaintiff and the plaintiff fails to comply with the directions of the Court thereafter then the suit would be treated under Order 7 Rule 11 CPC. 6. In that view of the matter, this writ petition is allowed. The impugned order dated 24.08.2005 is set aside with direction to the learned trial Court to decide Issue No. 4 as preliminary issue and then proceed with the matter.