J MUTHAMMA Vs. ILGLAMMA

JUDGEMENT

(1.) Order 14, Rule 2 C.P.C. gives ample discretion to the court to decide the question of jurisdiction as a preliminary issue or along with the other issues. The defendants in this case raised a plea that the valuation of the suit is Rs. 1,82,500/- The plaintiff valued the suit as Rs. 65,000/- and claimed 1 /5th shate. The defendants filed two certificates, one is from the Assistant Engineer and another is from the Sub-Registrar. With regard to the valuation, the basic value registered in that area has to be taken into consideration and it cannot be taken as a guide for the year 1986 to fix the valuation of the schedule mentioned property. On what basis the Assistant Engineer gives the valuation is not known. Unless he enters into the box and subjected to cross-examination, it is very difficult to accept the valuation given by the Assistant Engineer particularly when the plaintiff states that it is a mixed question of fact and law. In the absence of the production of the Assistant Engineer for cross-examination, it must be held that the view that has been taken by the lower court that it is a mixed question of fact and law i s correct and it cannot be tried as a preliminary issue. If the lower court on the basis of the record, finds that it is a question of law it can decide the question of jurisdiction as a preliminary issue. If the disputed questions of fact and law are there, it need not try it separate'y. With regard to the collecjion of the court-fee, the court has got ample power to collect the court-fee, at any stage of the suit and the court is not debarred from doing so on the ground that it registered the suit. I am fully agreeing with the finding of the lower court that it is a question of fact and law. When it is found that it is a question of fact and law, the question of revising the order by invoking Section 115 C.P.C. does not arise. Under those circumstances, I find that there is no error of jurisdiction or illegality in the impugned order.

(2.) The learned counsel for the petitioners relied upon the decisions reported in Kaka vs. Kanhayyalal ; Raichander vs. Permanand ; and Satyanarayana vs. Om Prakash & Others . The learned counsel for the respondents relied upon a decision reported in S.S. Khanna vs. F.J. Dillon

(3.) The decision in S.S. Khanna vs. F.J. Dillon (cited as No. 4 supra) laid down the correct principle and the same principle has been followed and the amendment is also same. The other decisions have no material bearing to the facts of this case. The decisions relied upon by the learned counsel for the petitioners have no bearing to the facts that arose in this case, when particularly the Supreme Court has laid down a principle in the year 1964 itself and the same has been followed up by an amendment in the Civil Procedure Code by amending Order 14, Rule 2 C P.C. The Civil Revision Petition is without any merit and it is accordingly dismissed. No costs.