SHIVDAYAL Vs. NADKISHORE AND OTHERS

JUDGEMENT

(1.) This petition filed under Article 227 of the Constitution challenges the order dated 20/06/2012 passed by the Court below, whereby application of the petitioner/plaintiff preferred under Order 7 Rule 11 CPC read with Section 6 of the Court fee Act is rejected.

(2.) Respondent filed a suit for declaration and mandatory and permanent injunction with recovery of mesne profit. The petitioner/defendant No.1 filed its written statement and stated that the plaintiff has claimed mesne profit since 2006, which comes to Rs. 1,20,000/- up to 2011 for which Court fee is required to be paid under Sections 7(1)(iv)(c)(d) of the Court fee Act, 1870. It is stated that suit is not properly valued. The trial Court framed issue No.8 in this regard. In this issue, the Court was required to decide whether the valuation of the suit is proper. This issue was framed as an additional issue. The petitioner preferred application Annexure-P/5 with the request that the said additional issue be decided as preliminary issue. This application was rejected by the Court below.

(3.) Shri T.C. Singhal learned counsel for the respondent at the threshold submits that he has no objection, if the said issue is decided as preliminary issue. He submits that petition may be allowed and the Court below may be directed to decide the said issue. Shri Pratip Visoriya has no objection to this suggestion.