RAGHBIR SINGH Vs. BHATERI

JUDGEMENT

(1.) THIS petition filed under Article 227 of the Constitution of India challenges the order dated 17.1.2004 passed by the Additional Civil Judge (Sr. Division), Charkhi Dadri dismissing the application of the defendant-petitioner for treating the issue of court fee as a preliminary issue.

(2.) PLAINTIFF -respondents have filed a suit for declaration to the effect that they were entitled to maintenance @ Rs. 5,000/- p.m. They also challenged the decree in favour of defendant-respondent Nos. 3 and 4 Somvir Singh and Arvind. The defendant-petitioner contested the suit on the ground that plaintiff- respondent Nos. 1 and 2 are living separately from the petitioner without any cause and a specific plea with regard to court fee was also raised in para 10 of the written statement. The trial Court framed the issues on 11.2.2002 but no issue with regard to court fee was framed. The trial Court then proceeded to record the evidence and substantial evidence of the plaintiff-respondents stand already recorded. It is also pointed out by the order of the Civil Judge that issues were framed in the presence of the counsel for the parties and interim maintenance @ Rs. 1,800/- p.m. (Rs. 1,000/- for plaintiff-respondent No. 1 and Rs. 800/- for plaintiff-respondent No. 2) was agreed to be paid till the final decision of the suit. It is in these circumstances that another application was filed by the defendant-petitioner for treating the non- existent issue of court fee as a preliminary issue and the application has been dismissed.

(3.) AFTER hearing the learned and perusing the impugned order, I am of the considered view that the application filed by the defendant-petitioner was wholly mis-conceived. The negligence on the part of the defendant-petitioner is writ large as he sought the treatment of non-existent issue as a preliminary issue which was not even framed. In such a situation, to say that there is a duty cast on the Court under Order XIV Rule 1 of the Code would lack complete merit. Therefore, I am not persuaded to accept the argument raised by the learned counsel. The prayer of the learned counsel for filing of an application for framing of issue is also declined. The revision petition is mis-conceived and is liable to be dismissed.