ARUN KUMAR SAXENA Vs. RAM NARAYAN SAXENA

JUDGEMENT

(1.) THE present petition has been filed by the petitioners -defendants challenging the order dated 19.4.10 rejecting the application of the petitioners under Order XIV Rule 2 CPC and also the order dated 3.8.09 rejecting the application under Order VII Rule 11 CPC passed by the Addl. District Judge No. 4, Kota (hereinafter referred to as 'the trial court'). It has been submitted by the learned counsel for the petitioners that when the application under Order VII Rule 11 of CPC was rejected by the trial court, the application under Order XIV Rule 2 for deciding the issue No. 5 with regard to the valuation of the suit, as preliminary issue should have been granted by the trial court. The learned counsel has relied upon the judgments of this court in the case of Smt. Kamla & Anr. Vs. Shri Ramesh Chandra & Ors. : 2002 (4) WLC (Raj.) 321 and Suresh Yadav (Dr.) Vs. Sanjay Kumar Sharma & Ors., 2006(2) DNJ (Raj.) 892 in support of his submissions.

(2.) THE court does not find any substance in the present petition, inasmuch as the application of the petitioners -defendants filed under Order VII Rule 11 has been rightly rejected by the trial court on the ground that it would be a matter of evidence whether the suit was properly valued or not by the respondents -plaintiffs. The said order dated 3.8.09 also remained unchallenged by the petitioners, till the issues were framed by the court and till they submitted an application under Order XIV Rule 2 of CPC for deciding the issue No. 5 with regard to the valuation of the suit as the preliminary issue. It is pertinent to note that as per the provisions contained in Order XIV Rule 2 CPC, when the issue relates to either jurisdiction of the court or a bar to suit created by any law for the time being in force, such issue could be decided by the court as preliminary issue. The issue pertaining to valuation of suit being neither the issue of jurisdiction nor pertaining to bar to the suit, such issue could not have been decided by the trial court as preliminary issue without permitting the parties to lead evidence in that regard. The trial court having rightly dismissed the said application, and the said order being discretionary in nature, this court exercising limited jurisdiction under Article 227 of the Constitution of India is not inclined to interfere with the same. The petition being devoid of merits deserves to be dismissed and is accordingly dismissed.