HARDWARI LAL Vs. POHKAR MAL

JUDGEMENT

(1.) THE salutary provisions of the Code of Civil Procedure (Amendment) Act 1976 which were enacted for the laudable object of plugging the loop--holes in processual law and, thus, expediting the conclusion of protracted litigation, appear to have failed to make an impact, at least in the present case. The facts may be noticed, though briefly. Respondents Nos. 1 to 6 (in the present Revision Petition) filed a suit against Hardwari Lal petitioner and 29 others (respondents Nos. 7 to 35) for possession by partition of the half share of two shops situated at Mohindergarh. The suit was contested and the trial Court framed the necessary issues to cover the controversial points. One of the issues, i. e. issue No. 3 was to the following effect:-" Whether the suit is properly valued for purposes of court--fee and jurisdiction"? It transpires that a prayer was made on behalf of the defendants that the above issue may be treated as a preliminary issue as the plaintiff had allegedly under--valued the suit property. The trial Court vide its order, dated February 22, 1977, considered this matter and was of the view that the question regarding the valuation of the property to be fixed, depended on evidence about the condition and the market value of the shops and this matter could be conveniently decided along with the other issues when the parties lead their evidence. The learned Subordinate Judge, therefore, refused to try the said issue as a preliminary issue. It is this order of the learned Subordinate Judge which is the subject matter of attack in the present Revision Petition.

(2.) MR . B. S. Shant learned counsel for the petitioner, with his usual eloquence, contended that the trial Court was not justified in refusing the prayer for treating the concerned issue as a preliminary issue as the point involved touched upon the jurisdiction of the Court to try the suit. He further submitted that in case the said issue is tried in the first instance and a finding is recorded that the suit had not been properly valued for purposes of court--fee and jurisdiction, it could result in the rejection of the plaint and this fact made it justifiable for the Court to deal with the matter without going into the merits of the case. In support of his submission, he seeks to place reliance on Resham Lal v. Anand Sarup, AIR 1974 Punj and Har 97. There is no gainsaying that but for the change in law in consequence of the amendment of the Code of Civil procedure, this authority would certainly support his contention. A perusal of the order passed by the learned Single Judge in that case would show that the view expressed in this behalf was based upon the provisions of Order VII, Rule 11 of the Code of Civil, Procedure, as it was before its amendment. According the said provision, the plaint had to be rejected where the relief claimed is under--valued and the plaintiff on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so. The learned Judge also noticed the contents of Order VII, rule 1 of the Code while recording his view in the matter. As already stated, this authority cannot be utilised in the present case in view of the change in law. Order VII, R. 11 of the Code, after its amendment, incorporates a proviso that the trial Court can even extend the time fixed for the correction of the valuation or supplying of the requisite stamp. It is obvious that a relaxation has been made by the Legislature in this behalf. Another provision of the Code which is relevant for the consideration of this matter is Order XIV, R. 2. This provision has also been radically changed in the amended Code. Order XIV, R. 2 of the Code as it existed earlier was to the following effect:

(3.) THERE is no merit in the Revision petition which is dismissed. Enough time has been lost, though unavoidably for the disposal of this Revision petition. The parties (who are represented in the present proceedings) through their counsel, have been directed to appear before the trial Court on February 27, 1978. The costs of the present Revision Petition shall follow the event.