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2017 DIGILAW 245 (MP)

Arvind Singh Bhadouriya v. Ajay Singh

2017-02-15

S.A.DHARMADHIKARI

body2017
ORDER 1. In this petition under Article 227 of the Constitution of India, petitioner has assailed the impugned order dated 31.3.2015 (Annexure P-1) in Civil Suit No.80/2013 passed by Civil Judge, Class-I, Mehgaon, District Bhind, whereby petitioner's application under Order 14 rule 2 of CPC has been rejected. 2. Brief facts leading to filing of this case are that the suit for declaration and permanent injunction was filed by plaintiff/respondent No.1. The petitioner had filed an application under Order 7 rule 11 CPC in which it was prayed that the value of the property is more than Rs.60 lacs, therefore, the suit has not been properly valued nor he has paid proper court-fees, therefore, the suit of the plaintiff/respondent No.1 is liable to be dismissed. The said application was decided by the learned trial Court on 21.11.2013 with observation that as the written statement has been filed, hence, the issue of valuation cannot be decided as a preliminary issue. Subsequently, additional issues were framed by the learned trial Court the issues with regard to valuation and the pecuniary jurisdiction of the Court, therefore, petitioner moved an application under Order 14 rule 2 of CPC and prayed that the issues with regard to jurisdiction and valuation be decided as a preliminary issue. No reply was filed by the Plaintiff/respondent No.1. The trial Court decided the application by order impugned mentioning the fact that in order dated 21.11.2013, it was observed that issue of valuation can be decided after evidence of the parties and the same was rejected. The impugned order passed by the trial Court is contrary to law and without deciding the preliminary issue, the case has been wrongly fixed for recording evidence. 3. The following additional issues were framed by the trial Court on 27.2.2015 as under:- ^^okn iz'u v- D;k oknh us okni= dk mfpr ewY;kadu fd;k gS \ l- D;k oknh us mfpr U;k; 'kqYd iVk;k gS \ n- D;k U;k;kYk; dks okn lquokbZ dk vkfFkZd {ks=kf/kdkj gS \** 4. On bare perusal of the impugned order, it can be seen that the learned Court below had come to the conclusion that the preliminary issue can be decided only after recording the evidence. 5. On bare perusal of the impugned order, it can be seen that the learned Court below had come to the conclusion that the preliminary issue can be decided only after recording the evidence. 5. It is seen that the law laid down with regard to question of law and fact that it should be tried as preliminary issue has been settled by the Full Bench of this Court in the case of M/s. Ramdayal Umraomal v. M/s. Pannalal Jagannathji, reported in 1979 JLJ 720 = AIR 1979 MP 153 (FB). The Bench of this Court has observed as under :- “Therefore, after reviewing the entire case-law on the point, we are of opinion that under Order 14 rule 2 CPC, an issue relating to jurisdiction of the Court can be tried as a preliminary issue only if it can be disposed of without recording any evidence. If the issue about jurisdiction is a mixed question of law and fact requiring recording of evidence, the same cannot be tried as a preliminary issue. Consequently the decisions cited as authorities on behalf of the applicant cannot be accepted as laying down the correct law. In fact the Division Bench order dated 25.8.1977 reported in Ramdayal Umraomal v. Pannalal Jagannathji (1977 MPLJ 752 : AIR 1978 Madh Para 16) has not at all answered the reference in clear words either this way or that way, creating confusion, and we are unable to agree with the view expressed therein and conclusion reached therein, if any, as that decision also has not decided the case correctly.” 6. On the basis of aforesaid reasoning it can be held that if the issues can be decided without recording the evidence, then it can be tried as preliminary issue. In the present case, the respondent has filed the suit which is improperly valued, no reply was filed, pecuniary jurisdiction is involved. All these issues being issues of mixed question of fact and law, therefore, it cannot be decided as a preliminary issues. The trial Court has rightly come to the conclusion. 7. In view of law laid down by the Full Bench of this Court in M/s. Ramdayal Umraomal (supra), only those issues can be decided as preliminary issues, where the same can be decided without recording the evidence. 8. The trial Court has rightly come to the conclusion. 7. In view of law laid down by the Full Bench of this Court in M/s. Ramdayal Umraomal (supra), only those issues can be decided as preliminary issues, where the same can be decided without recording the evidence. 8. In the result no fault can be found with the findings of the trial Court, as such no ground is made out for calling interference under Article 227 of the Constitution of India. 9. Resultantly, the writ petition stand dismissed. 10. The interim order passed by this Court on earlier occasion shall stand vacated.