GURCHARAN SINGH Vs. HARDIAL SINGH

JUDGEMENT

(1.) This is a defendant's revision petition against the order of the trial Judge dismissing their application under Order 7, Rule 11, read with Section 151 of Code of Civil Procedure, for treating the following issue as a preliminary one :-

(2.) It is beyond dispute and conceded by the learned counsel for the respondent that the question of court-fee is one of law and a preliminary one. It immediately follows therefrom that it has to be tried in the first instance under the provisions of Order 14, Rule 2, Code of Civil Procedure. If the trial of such an issue involves the leading of some evidence also by the parties, that cannot be a ground for not treating the issue as a preliminary one. As 1 have already said, the learned Judge was of the view that since the determination of that issue would also involve the decision of the question as to whether the plaintiff was an idiot or not, it is a ground for not treating the said issue as a preliminary one. This approach, in my view, is incorrect in law. Such a matter came up before me in Babu Ram and another v. Pakiza Begum and others,1972 PunLR 848, where I held :

(3.) It has been brought to my notice that a similar view was taken by Sir Tek Chand J. in Walaiti Ram v. Gopiram and others, 1935 AIR(Lah) 75. This is what the learned Judge observed :