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2013 DIGILAW 748 (MP)

Shantidevi v. Balchand

2013-07-03

B.D.RATHI, U.C.MAHESHWARI

body2013
JUDGMENT B.D. Rathi, J. The appellants/plaintiffs have filed this appeal under Section 96 of C.P.C. being aggrieved by the order dated 9.4.2013 passed by Second Additional District Judge, Shivpuri in Civil Suit No.1-A/2013, whereby allowing the application of the respondent filed under Order VII Rule 11 of C.P.C. the Suit of the appellants has been dismissed at the initial stage. 2. The facts giving rise to this appeal, in short, are that appellants herein filed a suit for declaration and perpetual injunction against the respondents with respect of the house No.134 situated in Ward No.6, Court Road, Shivpuri. After receiving the summons of such Suit on behalf of the respondents' joint written statement filed. In which by challenging the averments of the plaint various other objections were also taken in the special pleadings. 3. Before framing the issues in the matter on behalf of the respondents herein an application under Order VII Rule 11 of C.P.C. was filed for dismissal of the Suit on various grounds:- (i) The Suit has not been filed for the entire property of the Joint Hindu family. (ii) The Suit has not been filed for the partition of the entire Joint Hindu Family property. (iii) The Suit has not been filed with proper valuation and Court fees accordingly. (iv) The suit deserves to be dismissed on account of non-joinder of the necessary parties. 4. The averment of the aforesaid application of Order VII Rule 11 of C.P.C. were disputed on behalf of the appellants in their reply. 5. On consideration, the trial Court has allowed such application and dismissed the appellants' Suit in which the appellants have come to this Court. 6. Having heard the counsel at length, keeping in view his argument after going through the impugned order, we are of the considered view that what so ever grounds were taken by the respondents in the application under Order VII Rule 11 of the C.P.C could not have been decided by the trial Court at preliminary stage before framing the issues and recording the evidence. In any case, some of the question raised in the application could be decided by the trial Court only after framing the issues as preliminary issues under Order XIV Rule 2 of the C.P.C. if the evidence is not required to decide the same. 7. In any case, some of the question raised in the application could be decided by the trial Court only after framing the issues as preliminary issues under Order XIV Rule 2 of the C.P.C. if the evidence is not required to decide the same. 7. So far the objection relating to the deficit valuation of the Suit and the Court fees is concerned, the Court is bound to decide such questions on the basis of the averments of the plaint, without influencing by any of the objection taken by the defendants/respondents either in their written statement or in the aforesaid application. In such premises, on perusing the averments of the plaint, it is apparent that the Suit has been filed by the appellants for declaration to declare his right over the property on the basis of the adverse possession and pursuant to it, the prayer for perpetual injunction is also made and accordingly the suit was valued and Court fees has been affixed but the trial Court has decided such issue by influencing the averments stated by the respondent in their aforesaid application. 8. So such approach of the trial Court is not sustainable. Our aforesaid view is fully fortified by the judgment of the Apex Court in the matter of S.Rm. Ar. S. Sp. Sathappa Chettiar Vs. S. Rm. Ar. Rm. Ramanathan Chettiar, reported in AIR 1958 S.C. 245 , in which it has been held as under:- “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”. 9. Apart the aforesaid, it is settled preposition of law that whenever the issues framed under Order XIV, Rule 1, 2 of the C.P.C. or any of them could not be decided on merits unless the evidence of the parties is necessary and needed then such issue could neither be treated to be a preliminary issues nor could be decided in such manner. In view of this principle the questions relating to the disputed property whether the same is joint family property or not, or the impugned suit in the absence of the prayer of partition of the property or even in the absence of necessary parties is maintainable or not, could not be decided unless the issues are framed and the evidence is recorded. 10. Apart the aforesaid, suit could not have been dismissed by the trial Court unless the opportunity was extended to the appellants to amend their suit if necessary and to pay the necessary Court fees on proper valuation. 11. In view of the aforesaid discussion, the impugned order of the Trial Court being perverse, irregular and against the proprietary of the law is not sustainable and deserves to be set-aside. 12. Consequently, by allowing this appeal, the impugned order dated 9/4/2013 is hereby set-aside and the case is remitted back to the Trial Court with a direction to frame the issues and decide afresh on merits in accordance with the procedure prescribed under the law pursuant to it the aforesaid application of respondents filed under Order VII Rule 11 of C.P.C. is dismissed by extending the liberty to the respondents to raise such question at appropriate stage of trial. There shall be no order as to cost. Decree be drawn up accordingly. 13. At the request of the parties, they are directed to appear before the Trial Court firstly on 05.08.2013. 14. Office is directed to send the record of the trial Court alongwith a copy of this order within 15 days.