RUKHAMANI BAI Vs. BALKRISHNA

JUDGEMENT

(1.) THIS is an application filed by the original defendents challenging the reiection of their application under O. 7. R. 11 of the Code of Civil proeedure in a suit.

(2.) THE non -applicant no.1 brought a suit against the applicants and non -applicants nos.2 to 5 for a declaration that the house No. 83 Sitalamata Bazar. Indore is a joint Hindu family property of the plaintifs is and the defendants and the plaintiffs and defendant nos. land 2 have 6/25th share each in that property and defendant No. 3 has 1/25th share in the property and defendants nos. 4 to 8 jointly have 6/25 th share in that property. The suit was valued for pecuniery jurisdictional Rs. 25,00,000/ - and for the purpose of court -fees it was valued at Rs. 300/ - and court -fees of Rs. 30/ - was affixed. An application under 0.7 r. 11 of the Code of Civil Procedure was moved on behalf of original defendants no. 4,6,7 and 8 contending that actually the suit is for partition in the garb of declaration and, therefore, ad -valarum court -fee was payable treating it to be a suit for partition. The relief claimed in this application is that the plaintiff be asked to properly value the suit and after realising the court -fees payable on a partition suit; the suit be proceeded with. The trial Court after hearing the parlies, has rejected this application. Hence some of the defendants have come up in the revision against the order.

(3.) IT was contended on behalf of the applicants before me that seeking a deelaration of a defined share amounts to asking for partition and this declaration having been sought, the suit was actually a suit for partition. Reliance was placed on a Full Bench decision of this Court in Santoshchandra and Ors. V. Smt. Gyansundarbai (1970 MPLJ. 363). It was contended that the question of sufficiency of court -fees should be decided as a preliminary issue. In my opinion, this ruling has no application to the facts of the present case where the Court was considering as application under O.7 r. 11 of the Code of Civil Procedure and there was no question whether a particular issue should be treated as a preliminary issue. If the question of insufficiency of court fees and tenability of the suit are raised in a written statement and preliminary issues are framed then the Court cannot postpone these issues for the final judgment. That is the ratio of Santoshchandra's case (supra).