Jitendra Nath Ojha and Another vs Rameshwar Sahu and Others

S.B. Sinha, J.—This application is directed against an order dated 23.3.1991 passed by Sri Abhay Kumar, Additional Munsif, Ranchi in Title Suit No. 64 of 1986, whereby and whereunder he refused to decide the question of pecuniary jurisdiction as a preliminary issue.

The fact of the matter lies in a very narrow compass.

The Plaintiff-opposite parties filed a suit, inter alia, for declaration of title in respect of the lands in question which have been described in Schedule A of the plaint with structure standing thereon and also for a decree of confirmation of possession and in the alternative, if it is found that the Plaintiffs are not in possession, for a decree of recovery of possession. The Plaintiffs-opposite parties have valued the suit lands at Rs. 1000/- but according to the Defendants-Petitioners, however, the value of the suit land would be Rs. 4000000/- and thus beyond the pecuniary jurisdiction of the learned court below.

By reason of the impugned order, the learned court below has refused to decide the said issue as a preliminary issue.

Mr. Dilip Jerath, the learned Counsel appearing on behalf of the Petitioners, submitted that the learned court below committed an illegality in holding that the court is bound to accept the value of the suit properties as given by the Plaintiffs in view of a decision of this Court in Prem Kishori Devi v. State of Bihar reported in 1981 BBCJ 531 : 1982 PLJK 256.

According to Mr. Jerath, the learned court below failed to take into consideration that the suit does not comes within the purview of Section 7(iv)(c) of the Court Fees Act.

In view of the fact that the suit land comprises of 87 decimals all situate at (sic) and valuation of the suit land by the plaintiffs must be held to be totally arbitrary.

The learned Counsel, in this connection has relied upon a decision in D. Pattammal Vs. K. Kalyanasundaram, Mitsubishi France Vs. Neyveli Lignite Corporation Ltd. and Another, A.E. Appanna Setty and Sons v. S.S. Malimath reported in AIR 1962 Mys 108; Janki Das and Another Vs. Kalu Ram and Another, and in Bhimnath Misra and Others Vs. Jaggarnath Prasad and Others,

Mr. B.Y. Kishore, the learned Counsel appearing on behalf of the opposite parties, on the other hand, submitted that in view of the fact that the learned court below by reason of the impugned order had not decided the preliminary issue, the same is not a ''case decided'' within the meaning of Section 115 of the CPC and thus, this Court should not exercise its revisional jurisdiction.

The learned Counsel further submitted that Order XIV, Rule 2 of CPC applies in a case where a suit can be decided only on the basis of the averments made in the plaint and not in a case where for the purpose of determination of such a issue, evidences has to be taken.

The learned Counsel, in this connection, has strongly relied upon a decision in Dharamvir Virmani v. Union of India reported in 1976 BLJR 324; Ramdayal Umraomal Vs. Pannalal Jagannathji, Ram Sanjiwan Singh v. Bhola Prasad Thakur reported in 1990 BBCJ 216 and in Sunni Central Waqf Board and others Vs. Gopal ingh Vishrad and others,

There cannot be any doubt that even when the relief claimed by the Plaintiffs comes within the purview of Section 7(iv)(c) of the Court Fees Act, the valuation of the suit properties put by the Plaintiffs cannot be arbitrary.

In this case, however, as the Plaintiffs have prayed for a declaration of their title and confirmation and/or recovery of possession, ex-facie, the suit comes within the purview of Section 7(v)(e) of the Court Fees Act and not u/s 7(iv)(e) thereof.

There cannot be any doubt that in terms of Order XIV, Rule 2 of the Code of Civil Procedure, it is no longer, obligatory on the part of the trial court to determine jurisdictional issue as a preliminary issue.

By reason of CPC (Amendment) Act, 1976, emphasis has been laid down by the Parliament to try and dispose of all the issues together instead of disposal of the suit. The intention of the legislation becomes evident in view of the amendment made in Order XIV, Rule 2 of the CPC by reason of CPC (Amendment) Act, 1976 whereby and where-under the word ''shall'' occurring by Order XIV, Rule 2 of the CPC as stood before amendment has been replaced by the word ''may''.

This Court in Dhirendranath Chandra Vs. Apurba Krishna Chandra and Others, has clearly held that as by reason of the aforementioned Amending Act of 1976, a discretion has been conferred upon the trial court to decide a issue as a preliminary issue, a civil revision could not be maintainable in the event the court refuses to dispose of the suit by trying a issue by way of preliminary issue.

The aforementioned decision has been followed by this Court in Ram Sanjiwan Singh v. Bhola Prasad reported in 1990 BBCJ 216 wherein this Court held as follows:

Sub-rule (2) of Rule 2 of Order 14 confers a discretion upon the trial court to decide an issue as a preliminary issue provided he is of the opinion that the case or any part thereof may be disposed of on an issue of law only and if the said issue relates to the jurisdiction of the court; or if a bar of the suit created by any law for the time being in force, the court may try such issue first. The very fact that the legislature has chosen to use the words may try that issue first'', clearly goes to show that a discretionary power has been conferred upon the court concerned to decide any question of jurisdiction or an issue that the suit is barred by a reason of provisions of any other law and the said provision is not imperative in nature. In view of the fact that in the instant case, the court has framed the issue of res judicata and even made an attempt to decide the same as a preliminary issue clearly goes to show that he had exercised the jurisdiction vested in him by law but because of the difficulties which he has been facing in deciding the complicated question of res judicata without the evidence bung led by the parties he passed the impugned order. In my opinion this can neither be said to be illegal nor the court can be said to have committed a material irregularity in exercise of his jurisdiction.

The same view has been reiterated by a Full Bench of the Madhya Pradesh High Court in Ramdayal Umraomal Vs. Pannalal Jagannathji, and a recent Full Bench decision of the Allahabad High Court in Sunni Central Waqf Board and others Vs. Gopal ingh Vishrad and others,

The decisions cited by Mr. Jerath in A.K. Appanna Setty and Sons v. S.S. Malimath reported in AIR 1962 Mys 108; Janki Das and Another Vs. Kalu Ram and Another, and in Raghu Nath Mahadeo Vs. The Commissioner of Income Tax, having been rendered before coming into force of CPC (Amendment) Act, 1976, the said decisions can no longer be cited as precedents.

The decision in Mitsubishi France v. Neyveli Lignite Corporation Ltd. reported in AIR 1985 Mad 100 has been distinguished by this Court in Ram Sanjiwan Singh''s cast (supra).

In D. Pattamal v. K. Kalyansundaram reported in AIR 1989 Mad 78 a learned single Judge of that Court has held that the Plaintiff is not free to make his own estimate so far as the value of the suit properties is concerned There cannot be any dispute so far as the aforesaid proposition of law is concerned, inasmuch a Full Bench decision of this Court in Md. Alam and etc. Vs. Gopal Singh and Others, has clearly held that the Plaintiff is not free to choose his own valuation.

It may be mentioned that this Court in the aforementioned decision over-ruled the decisions in Smt. Prem Kishori Devi Vs. State of Bihar, and in Kesho Mahton and Others Vs. Ayodhya Mahton and Others,

In this view of the mutter, in my opinion tins Court cannot exercise its revisional jurisdiction by interfering with the impugned order.

This Civil Revision application, therefore, must fail and is dismissed. However, in the facts and circumstances of this case, it is desirable that the trial of the suit itself should be expedited and be concluded preferably within a period of three months from the date of receipt of a copy of this judgment. In the facts and circumstances of the ease, there will be no order as to costs.