Hanuman Ram vs Deraj Ram
2021 Latest Caselaw 17702 Raj

(1 of 7) [CW-5484/2019]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 5484/2019 Hanuman Ram S/o Pratap Ram, Aged About 54 Years, Resident Of Dhorimanna, Tehsil Dhorimanna, District Barmer.

----Petitioner Versus

1. Deraj Ram S/o Shri Ratan Ram, Resident Of Meghwalo KiBasti (Lukhu), Tehsil Gudamalani, District Barmer.

2. Chokha Ram S/o Shri Sonaram (Deceased) Through His Legal Representatives-, Resident Of Meghwalo Ki Basti (Lukhu), Tehsil Gudamalani, District Barmer. 2/1. Asuram S/o Late Shri Chokharam,, Resident Of Meghwalo Ki Basti (Lukhu), Tehsil Gudamalani, District Barmer.

2/2. Dedaram S/o Late Shri Chokharam,, Resident Of Meghwalo Ki Basti (Lukhu), Tehsil Gudamalani, District Barmer.

2/3. Fateh Singh S/o Late Shri Chokharam, Resident Of Meghwalo Ki Basti (Lukhu), Tehsil Gudamalani, District Barmer.

2/4. Bhakhar Ram S/o Late Shri Chokharam,, Resident Of Meghwalo Ki Basti (Lukhu), Tehsil Gudamalani, District Barmer.

2/5. Bharat Kumar S/o Late Shri Chokharam,, Resident Of Meghwalo Ki Basti (Lukhu), Tehsil Gudamalani, District Barmer.

2/6. Bhikhi Devi W/o Late Shri Chokharam,, Resident Of Meghwalo Ki Basti (Lukhu), Tehsil Gudamalani, District Barmer.

3. Dani W/o Javararam,, Resident Of Meghwalo Ki Basti, (Lukhu), Tehsil Gudamalani, District Barmer.

4. Hari Ram S/o Shri Motaram, Resident Of Kumharo Ki Beri, Tehsil Gudamalani, District Barmer.

5. Kishan Ram S/o Motaram,, Resident Of Kumharo Ki Beri, Tehsil Gudamalani, District Barmer.

6. Arjun Ram S/o Shri Demaram,, Resident Of Kumharo Ki Beri, Tehsil Gudamalani, District Barmer.

7. State Of Rajasthan, Through Tehsildar, Tehsil Gudamalani, District Barmer.

                                            (2 of 7)                    [CW-5484/2019]


                                                                  ----Respondents


For Petitioner(s)          :     Mr. Natha Ram Choudhary
For Respondent(s)          :     Mr. R. K. Thanvi, Sr. Advocate
                                 assisted by Mr. Narendra Thanvi



                      JUSTICE DINESH MEHTA

                                      Order

25/11/2021

1. The present writ petition is directed against the order dated

06.03.2019, passed by learned Civil Judge, Barmer (hereinafter

referred to as the 'trial Court') in Original Suit No.14/2018.

2. The facts relevant are that the plaintiff (petitioner herein)

instituted a suit for partition, declaration and perpetual injunction

while impleading the present respondents as defendants.

Petitioner had valued the suit at Rs.12,000/- being market value of

the property.

3. In the suit so instituted, the respondents moved an

application on 27.01.2005 under Order VII Rule 10 of the Code of

Civil Procedure (for short 'Code') and stated that the value of the

land as indicated in the plaint i.e., Rs.12,000/- is very less and the

same is more than Rs.1,00,000/-. It was prayed that since the suit

is required to be heard by the District Judge, it may be returned to

be filed before appropriate Court.

4. The respondents' aforesaid application was rejected by the

Court vide its order dated 28.07.2006 inter alia observing that the

matter can only be decided after leading of the evidence and a

leave was given to the defendants to raise the plea in written

statement.

(3 of 7) [CW-5484/2019]

5. During pendency of the suit, an application dated 11.09.2007

came to be filed by the defendants under Section 11(2) of the

Rajasthan Court Fees and Suit Valuation Act, 1961 (hereinafter

referred to as the 'Act of 1961').

6. In the application aforesaid, while contending that the court

fees which has been paid (valuing the suit at Rs.12,000/-) was

insufficient, the defendants prayed that the plaintiff be asked to

pay defecit court fee and that the issue No.1 & 2 as framed by the

trial Court be decided as preliminary issue, according to provisions

of Order XIV Rule 2 of the Code.

7. The respondents' aforesaid application under section 11(2) of

the Act of 1961 was objected to by the plaintiff inter alia, stating

that the objection regarding court fee concerns, the State

Government and the same is not a pure question of law, and

hence, it be decided alongwith all other issues.

8. The application in question has been disposed of by the trial

Court vide its order dated 06.03.2019, in the manner that issue

No.1 and 2 are required to be decided as preliminary issues, while

giving both the parties an opportunity to lead evidence.

9. While disposing of the application vide order dated

06.03.2019, the trial Court observed that such course is necessary

as the decision of the issue will also have bearing on the

jurisdiction.

10. Mr. Choudhary, learned counsel for the petitioner, argued that

the trial Court has erred in passing the impugned order and in

proceeding to decide the issue No.1 & 2 as preliminary issues.

(4 of 7) [CW-5484/2019]

11. Learned counsel argued that once the issues have been

framed, all the issues are required to be decided at one go, after

evidence qua all the issues have been led. According to him, if

after the completion of the evidence the trial Court is of the view

that the plaint has not been appropriately valued, appropriate

order for payment of deficit court fee can be passed and

simultaneously, the matter can be sent to the Court having

pecuniary jurisdiction. However, the evidence cannot be led in

piecemeal and thus, the approach of the trial Court in deciding

issue No.1 & 2 as preliminary issue is not in accordance with law.

12. In support of his contention aforesaid, learned counsel for

the petitioner relied upon the judgment of this Court in the case of

Smt. Geeta Devi Vs. Shri Gopal Krishan Vashistha and

another reported in RLW 1996 (1) Raj. 460 and Dullar

Enterprises Private Ltd Vs. Bhagwan reported in RLW 2000

(4) Raj. 177.

13. Learned counsel for the petitioner further submitted that

after the amendment of the Code in the year 1976, the word

"shall" used in Order XLI Rule 2 has been replaced by the word

"may" and thus, it is not mandatory for the trial Court to decide

the question of jurisdiction at the first stage.

14. It is also submitted that as per the amended provision, if the

trial Court comes to a conclusion that it does not have jurisdiction

on the basis of valuation of the suit, it can remit the record to the

appropriate Court and then, the concerned Court is required to

proceed in the suit from the stage, from where the trial Court has

forwarded the record/case.

(5 of 7) [CW-5484/2019]

15. Mr. R. K. Thanvi, learned Senior Counsel appearing for the

respondents - defendants, argued that the impugned order passed

by the trial Court is just and proper, while contending that the

issue No.1 & 2, which relate to jurisdiction of the Court are better

decided at first stage, as preliminary issues so that the

proceedings are taken up before the competent Court.

16. Learned Senior Counsel submitted that both the judgments

cited by the learned counsel for the petitioner have been passed

by this Court in revisional jurisdiction and that too in the

circumstances that prevailed in the year 1996/2000.

17. While highlighting that the legislature has consciously

restricted the scope of revision by amendment in the Code of Civil

Procedure, it is argued that this case does not warrant any

interference under Article 227 of the Constitution of India as no

prejudice has been caused to the petitioner-plaintiff.

18. It is pointed out by learned Senior Counsel that the present

suit, which was instituted way back in the year 2004 is still

languishing in the dockets of the trial Court and it would be in the

fitness of things that the issue No.1 & 2, out of which one relates

to the jurisdiction of the Court be decided, as preliminary issues.

19. Heard.

20. In the opinion of this Court, the provision of Order XIV Rule 2

of Code permitting a Court to decide the issue as preliminary issue

has to be given its true meaning.

21. True it is, that the question of valuation of the suit in the

present factual backdrop is a mix question of fact and law and may

require leading of evidence by both the parties.

(6 of 7) [CW-5484/2019]

22. But in the opinion of this Court, such issue is required to be

decided at the first instance, by confining the evidence to the

aspect of valuation, lest the Court which may not have jurisdiction

to try the suit would not only record but also appreciate the entire

evidence and then, if ultimately it is found that said Court did not

have jurisdiction, the matter would be sent to a Court competent.

23. Furcation or creation of jurisdiction on the basis of monetary

and territorial limits has its own reasoning and rationale behind it.

24. In the changing circumstances when the Courts are flooded

with number of cases, in the opinion of this Court, considering the

suit, leading the evidence and then sending the matter to a

competent Court in exercise of powers under Order VII Rule 10 of

CPC is not conducive to the cause of justice.

25. Adverting to the judgments relied upon by the learned

counsel for the petitioner, this Court finds that the same have been

decided by the Court in the exercise of its revisional jurisdiction.

This Court is cognizant of the fact that the question of law, which

has been decided in the revisional jurisdiction has got equal

precedential value but considering the judgment of Hon'ble

Supreme Court in the case of Shalini Shyam Shetty & Ors. Vs.

Rajendra Shankar Patil, reported in (2010) SCC 329 and

Surya Dev Rai Vs. Ram Chander Rai & Ors., reported in

2003(6) SCC 675, this Court does not find it to be a fit case

warranting interference under Article 227 of the Constitution of

India.

26. So far as judgment in the case of Smt. Geeta Devi (supra) is

concerned, a perusal of the facts involved therein shows that in all

three issues were framed by the trial Court, and considering that

(7 of 7) [CW-5484/2019]

evidence to be recorded in all three issues will be common, this

Court had held that no purpose would be served in deciding the

three issues in piecemeal. In the present case, there are issues

and questions to be determined apart from the Court

fee/jurisdiction and the evidence to be recorded is not common for

all the issues. Hence, this case is clearly distinguishable on facts.

27. The facts of the case of Dullar Enterprises Private Limited

(supra) are quite different. In that case, the defendant therein had

moved application under Order XIV Rule 2 after completion of

evidence of plaintiff, for which, the court held that such issue was

not required to be decided as preliminary issue.

28. The trial Court has exercised the discretion so vested in it

under Order XIV Rule 2 of the Code. No prejudice has been caused

to the petitioner-plaintiff, hence, no interference is warranted.

29. As a parting remark, this Court cannot help but observe that

the suit in question which was filed in the year 2004 is still

languishing before the trial Court.

30. The writ petition is thus, dismissed.

31. Stay application too stands dismissed accordingly.

(DINESH MEHTA),J

11-A.Arora/-

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