LAXMI COTTON CO. Vs. MAHANT COTTON CO.

JUDGEMENT

(1.) THIS revision petition is directed against the order dated 13-11-2000 passed on I.A. No. VII in O.S. No. 503/1994 on the file of the IV Addl. Civil Judge (Jr. Dn.) Hubli. The petitioners filed I.A. No. VII under Order 14, Rule 2, CPC with a prayer to hear the additional issue No. 1 as preliminary Issue. The trial Court has framed additional issue in respect of the Court fee and jurisdiction on the ground that respondents will not be put to any inconvenience. On the other hand, it was submitted before the trial Court if it is not heard as a preliminary issue, the petitioners will be put to incalculable loss and grief. Therefore, the said additional issue No. 1 may be heard as preliminary issue. The trial Court after hearing both the sides and after considering the material on record was pleased to reject to hear additional issue No. 1 as preliminary issue and ordered it to be deleted. Assailing the said order passed by the trial Court, the petitioners have presented the present revision petition.

(2.) THE principal submission of the learned Counsel appearing for the petitioners is that the petitioners have requested the trial Court to hear additional issue No. 1 as preliminary issue regarding the payment of Court-fee and try the same. In support of the said submission, the petitioners have also placed reliance on the judgment of this Court in ILR (2000) Kant 1267 : (AIR 2000 Kant 319) in case of A. Madhava Hegde v. Rajendra S. Ravankar wherein, this Court has held issue relating to the Court fee shall have to be tried as preliminary issue. The provisions of Order 14, Rule 2, CPC being only procedural, they cannot outweigh the mandatory provisions of Section 11 of the Karnataka Court-fees and Suit Valuation Act. The said reliance placed by the learned Counsel has not been accepted by the trial Court. Learned Counsel was quick to point out that as a matter of fact, the trial Court has held that no doubt, the issue about the Court-fee shall have to be tried as a preliminary issue, but, however, the trial Court has committed an error in coming to the conclusion that the additional issue about the Court-fee and valuation is not necessary for the adjudication of the suit. Hence, it is liable to be deleted. The said reasoning assigned by the trial Court is not at all justifiable in view of the law laid down by this Court as stated supra. In my considered view, there is considerable force in the submission made by the learned Counsel appearing for the petitioners. The trial Court has committed an error in rejecting to try the additional issue No. 1 as preliminary issue without any jurisdiction.

(3.) I have perused the impugned order, thought it carefully and reassessed the matter with the assistance of the learned Counsel appearing for both the parties and reviewed the entire material on record. In my considered view the trial Court has committed an error in rejecting the contention raised by the respondents contrary to the law down by this Court as stated supra. The trial Court has given a specific finding that no doubt that issue about the Court fee shall have to be tried as preliminary issue but contrary to that has gone further stating that additional issue about the Court-fee is not necessary for adjudication of the suit. The said approach of the trial Court is perverse and it has committed illegality contrary to the well settled law laid down by this Court as stated supra. Even in a suit for accounts, the respondent should make a fair estimate of his claim and that estimate should have been deliberate under estimate. This aspect of the matter has not been taken into consideration by the trial Court nor made any attempt to go into the matter in deep to find out at least a fair estimate of the claim of the respondent. The Court might have directed the respondent to file a fair estimate of his claim. Just taking rescue under Section 33 of the K.C.F. and S.V. Act is not at all acceptable. Therefore, having regard to the facts and circumstances of the case as stated above, the trial Court has committed an error in rejecting to decide the additional issue No. 1 as preliminary issue. It is duty cast on the Court to make sincere effort and direct the respondent at least to submit a fair estimate. This attempt has not all been made by the trial Court and it has not followed the law laid down by this Court as stated supra. Having regard to the factual and legal position as stated above, I don't find any justification to sustain the impugned order passed by the trial Court. For the foregoing reasons, the revision petition filed by the petitioners is allowed. The order passed by the trial Court dated 13-11-2000 an I.A. VII in O.S. No. 503/1994 is set aside. Consequently I.A. VII filed by the petitioners is allowed. Further, the trial Court is directed to reconsider the matter afresh and proceed to pass order on merits of the case as expeditiously as possible bearing the pendency of the case from several years. Parties to bear their own costs. Petition allowed.