GEETA DEVI Vs. GOPAL KRISHAN VASHISTHA

JUDGEMENT

(1.) Smt. Geeta Devi, the plaintiff-petitioner, filed a suit for declaration, possession and mense profit against the defendant-non- petitioners in the Court of Additional Civil Judge (JD) No. 5, Jaipur City, Jaipur. One of the pleas taken by the defendant non-petitioners in their defence related to the valuation of the suit. The learned Civil Judge framed three issues. Issue Nos. 1 & 2 related to the question of ownership of the suit property. Issue No. 3 was in regard to the valuation of the suit property. The plaintiff-petitioner had valued the suit property at Rs. 3,000/-. The case of the defendant non-petitioners was that the suit property was worth Rs. 40,000/- which not only attracted more Court fees but also took the suit beyond the pecuniary jurisdiction of the trial Court at Rs. 25.000/- only. Subsequent to the framing of the issues the defendant-non-petitioners, through their application under Order 7, Rule 11, CPC requested the trial Court to determine and decide issue No. 3 first and reject the plaint on the ground of under valuation of the suit property. By his impugned order dated 3.1.1995 the learned Civil Judge accepted the said application and directed that issue No. 3 shall be decided as a preliminary issue. He accordingly called upon the parties to lead evidence on that issue only. It is against that order that the present revision petition under Section 115, CPC has been filed.

(2.) The contention of the learned counsel for the plaintiff-petitioner is that issue No. 3 being an issue of fact is required to be decided alongwith other issues. To this behalf of the learned Counsel relied upon the case of Ikramuddin v. Nazamuddin,1989 2 RajLW 458. The contention of the learned Counsel for the defendant-non-petitioners, however, is that issue No. 3 involves mixed questions of law and facts and the decision thereupon may take the suit of the plaintiff out of the pecuniary jurisdiction of the Court of the Additional Civil Judge. The same is, therefore, required to be decided first as a preliminary issue in support of his arguments the learned Counsel referred to Section 11 of the Rajasthan Court Fees and Suits Valuation Act, 1961 (for short, the Court Fees Act) and relied upon the cases in LOOKOSE JOSE V/S CHANDY SKARIAH, 1975 AIR(Ker) 206, SURESH KUMAR V/S STATE OF MADHYA PRADESH, 1975 AIR(MP) 30, PANNA LAL V/S MOHAN LAL, 1985 AIR(Raj) 178and 1994 2 WLN 430.

(3.) On a careful study of the cases relied upon by the learned Counsel for the parties in the light of the facts and circumstances of the present case and the relevant provisions of the Code of Civil Procedure applicable thereto I am of the opinion that the learned trial Court acted in the exercise of its jurisdiction with material irregularity.