GURMEET SINGH Vs. GURBACHAN KAUR

JUDGEMENT

(1.) IN this civil revision, the petitioner has challenged that order dated 15 -7 -1991 passed by the learned District Judge, Jammu, whereby he has decided both the issues against the petitioner and in favour of the respondent No 2 -

(2.) THE brief facts leading to filling of this petition are that respondent No 2 filed a suit against the petitioner and respondent No. 2 under the Right of prior purchase Act 1993 (1936 A D.) (hereinafter called as the Act), in respect of a single storied house comprising of two rooms, store one stair case and an open compound situated at Mohall Pratap Garh Jammu. Whereas the plaintiff/respondent No. 2 claimed in the suit the right of prior purchase the petitioner who was the vendee of the suit property along with respondent 1, who was its vender, contested this right The trial court framed as many as five issues for trial vide its order dated 7.5.1982 but out of these, first two issues were treated as preliminary issues and the parties were directed to lead evidence thereon. Vide the impugned order, the trial court has decided these two issues in favour of respondent No. 2 and against the petitioner and respondent No. 1. These two issues are reproduced as under: - "1. Has the suit not been properly framed, the relief of declaration of ownership of the suit house soughtto be preempted could not have been claimed in it and separate court fee, in case such a relief could be claimed ought to have been paid on it? OPP. 2 Is the suit not properly valued for purpose of court fee because the market value of the suit house on the date of the suit was not less than Rs. 50,000/. OPP." The finding of the trial court on issue No. 1 has not been contested in this petition The finding on issue No 2, however, was contested by the petitioner in this petition on the ground that the trial court has committed an irregularity and a patent error in law by holding that the fixation of the value of the suit for purposes of court fee was provided and therefore fixed in terms of the provisions of section 24 of the Act and that, in fact, the suits valued ought to have been fixed in terms of the provisions (of the Suits valuation Act and Section 7 (vi) read with Section 7 (v) (e) of the Court Fees Act. It has further urged on behalf of the petitioner that by wrongly fixing the value of the suit on the basis or the value reflected in the sale deed, the suit was under -valued and that its value ought to have been fixed on the basis of the market value as prevalent on the date of the filing of the suit.

(3.) WHEREAS Mr. Lehar learned counsel appearing for the respondent No. 1, has not advanced any arguments, in support or against the impugned order Mr. R. Gupta learned counsel appearing for the respondent No. 2, has strongly supported the impugned order. By way of preliminary objections, however he has urged that the revision petition was not maintainable in view of the clear provisions of Section 115 of the Civil Procedure Code on the question decided in the impugned order, viz. the payment of the court fees by the plaintiff in a pending suit. In support of his aforesaid contention he has relied upon a judgment of the Supreme court in the case of Sri Rathna Verma Raja Vs Smt. Vimla, reported in AIR 1961 SC 1299