Chandresh Jain vs Rajendra Kumar

B.D. Rathi, J.—With the consent of parties matter is finally heard. Petitioner has preferred this petition under Article 227 of Constitution of India seeking the relief that the impugned order dated 02-05-2013 passed by learned Fourth Civil Judge Class-I, Guna whereby the application filed by the petitioner under Order XIV Rule 2 and 5 of CPC has been rejected, be quashed and the application filed by the petitioner under Order XIV Rule 2 and 5 of CPC be allowed.

Having regard to the arguments advanced by the parties, the averments made in the application filed under Order XIV Rule 2 and 5 of CPC Annexure P/5 dated 05-04-2013 has been perused.

By preferring the application under Order XIV Rule 2 and 5 of CPC, it was prayed by the petitioner/defendant that the additional issues be framed in view of the averments made in the written statement by the petitioner/defendant. This prayer of petitioner''s counsel has been opposed by learned counsel for the respondent on the ground that all the objections made in the written statement have been covered in the issues already framed by learned trial Court on 23-09-2011 so there is no need to frame any additional issue.

On perusal of impugned order, it is clear that issue No. 1 is covering all the averments of written statement in relation to payment of arrears of rent. So far as the proposed additional issue

in relation to pecuniary jurisdiction is concerned, learned trial Court has held that from perusal of the plaint, it is clear that the plaint has been properly valued and accordingly proper court fee has already been paid by the plaintiff, therefore, there is no need to frame this additional proposed issue.

The abovementioned approach of trial Court is not proper. Firstly, the issue should be framed and thereafter after affording opportunity of hearing to the parties, opinion/finding should be given on that issue. In view of the aforesaid, this petition is partly allowed. Trial Court is directed that the additional issue in relation to pecuniary jurisdiction as proposed by the petitioner by filing the application dated 05-04-2013 under Order XIV Rule 2 and 5 of CPC be framed and thereafter this issue be decided as preliminary issue on the basis of averments made in the plaint and written statement.

With the aforesaid, this petition stands disposed of. Copy of this order be sent to the trial Court for necessary information and compliance.