Y VEERAREDDI Vs. Y PANDURANGA REDDI

JUDGEMENT

(1.) The petitioners in this revision petition are the defendants in the suit and the respondent is the plaintiff. OS No. 95 of 1980 on the file of the Subordinate Judge's Court, Markapur was filed by the respondent herein for partition of the plaint schedule properties and allotment of one share to him. Issues were framed in the suit in the year 1980 and two of the issues relate to proper valuation of the subject matter of the suit and payment of sufficient court fee. During the pendency of the suit, the petitioners herein filed I A No. 317 of 1982 under Sec. 11 (2) of the Andhra Pradesh Court Fees and Suits Valuation Act 1956 (hereinafter referred as 'the Act') to try issues 4 and 11 regarding court fee as preliminary issues. The learned Subordinate Judge on a thorough and eloborate consideration of the various judgments of this court, dismissed the application holding that the suit is more than three years old and isssues were framed as early as in November, 1980 and the present appjication was filed at a very late stage with the intention of prolonging the matter.

(2.) Aggrieved by the said order' the petitioners herein filed this revision petition. The question that arises for consideration in this Civil Revision Petition is whether the issues 4 and 11 relating to question of court fee should be tried as preliminary issues in the suit. The suit was filed by the respondent herein for partition of the suit schedule properties claiming that they are joint family properties of the first defendant and the respondent's (Plaintiff's) father. The petitioners who are the defendants in the suit resisted the claim of the respondent (Plaintiff) on various grounds and also took a plea that the subject matter of the suit was not properly valued and that sufficient court fee was not paid. Admittedly, issues were framed in the suit in November, 1980 but for the reasons best known to them, the petitioners did not raise a preliminary issue as to payment of court fee. They waited for more than two years and filed I A No 317 of 1982 to try the issues relating to court fee as preliminary issues.

(3.) It is contended by the learned counsel for the petitioners that once a a question relating to improper valuation of the subject matter of the suit or insufficient payment of court fee is raised, it is the bounden duty of the court to decide the said question first before proceeding with the trial of the suit, having regard to the provisions of Sec. 11 (2) of the Act. In support of his contention, the learned counsel placed reliance upon various judgments of this court. In a case reported in P V G Raju v State of Andhra Pradesh (C RP No 1247 of 1969 (1) 1970 A P High Court Notes Vol. I page 142 Madhava Reddy J as he then was, held as follows :