ANAND SAROP Vs. ARUN KUMAR

JUDGEMENT

(1.) I have heard the learned counsel for the parties and with their assistance have gone through the impugned order dated 26.11.1998 passed by Civil Judge (Junior Division), Sunam. I do not see any illegality or impropriety in the same. However, the learned counsel for the petitioner submitted that it was obligatory on the part of the trial Court to frame a preliminary issue as to whether the suit of the plaintiffs was properly valued for the purposes of court fee and jurisdiction. Supplementing his submission of the learned counsel for the petitioner relied upon a judgment of Hon'ble Supreme Court reported as 1992(1) RRR 172 (SC) : AIR 1992 SC 1526 : 1992(1) Supreme Court Cases 731, Sujir Keshav Nayak v. Sujir Ganesh Nayak in which it was observed that the defendant has the right to raise objection as to undervaluation of the suit which has to be decided as preliminary issue by the court. On the contrary, the learned counsel for the respondents submitted that the suit of the plaintiffs was for dissolution of partnership firm and for rendition of accounts. It is not even known to the plaintiffs how much amount he will be entitled to on the passing of the decree. His clients will pay the requisite court fee on the determination of the amount by the executing Court. For the purpose of suit, it was their duty to pay the nominal court fee and also to assess their suit for the purpose of jurisdiction, which has been done.

(2.) I have considered the submissions raised by the counsel for the parties and in my opinion the contention raised by Mr A.K. Mittal cannot be accepted and the judgment which has been relied upon by him is also distinguishable on facts. In this very judgment the Hon'ble Supreme Court was pleased to observe that if the plaintiffs have affixed the court fee or valued the suit in an arbitrary manner, the court has the power to direct the plaintiff to correct the jurisdiction value of his suit and to pay the proper court fee. At this juncture this court has to be guided by the allegations and averments made in the plaint. The plaintiffs have not alleged that after the rendition of accounts a particular amount shall be due to them. In these circumstances, they are only supposed to pay a nominal court fee of Rs. 20/-. which has been paid. The court fee will be charged from the plaintiffs on the passing of final decree, if any, in their favour. It cannot be inferred at this stage that the plaintiffs have acted in an arbitrary manner.