PANJALA BALARAJU Vs. C JANAIAH YADAV

JUDGEMENT

(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.

(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.