SATISH KUMAR Vs. LAL CHAND

JUDGEMENT

(1.) THIS petition filed under Section 115 of the Code of Civil Procedure is directed against the order dated 12.3.2003 passed by the Additional Civil Judge (Senior Division), Kaithal, dismissing the application of the defendant-petitioner under Order VII Rule 11 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') in which prayer was made for treating the issue concerning deficiency of Court fee as a preliminary issue.

(2.) BRIEF facts of the case are that the plaintiff-respondent filed Civil Suit No. 68 of 2001 on 23.8.1999 and the issues including the valuation of the suit for the purpose of Court fee were framed on 18.6.2000. Both the parties were present at the time of framing the issues. The defendant-petitioner did not pray for treating the issue of Court fee as preliminary issue and the suit was fixed for the plaintiff's evidence. The statement of the plaintiff was recorded on 2.5.2003. However, the evidence could not be completed on account of the fault of the defendant-petitioner as has been observed by the Civil Judge by referring to order dated 2.5.2000 The application under Order VII Rule 11 of the Code was filed on 22.7.2002 when the case was fixed for remaining evidence of the plaintiff-respondent. The civil Judge has dismissed the application by observing that the purpose of filing the application is only to delay the proceedings on one pretext or the other and to harass the plaintiff-respondent. The stage for treating the issue with regard to payment of Court fee as preliminary issue has already gone and the case is fixed for evidence of the plaintiff-respondent.

(3.) I have thoughtfully considered the submission made by the learned counsel and do not feel persuaded to take a view different than the one taken by the Court below because Order VII Rule 11 read with Order XIV Rule 2 of the Code provides that the Court is to pronounce judgment on all issues. The provisions with regard to treating an issue as a preliminary issue are not mandatory. Order VII Rule 11 and Order XIV Rule 2 of the Code as amended upto date read as under :-