Roshan Lal vs Lrs Of Ranjeet Lal And Ors

The present writ petition has been preferred against the order dated 12.3.2018, whereby learned Addl. District Judge No.5, Udaipur (hereinafter referred to as the learned trial court for short) has rejected the petitioner's application dated 27.4.2018 filed under Order VII Rule 11 of the Code of Civil Procedure read with relevant provisions of Rajasthan Court Fees and Suits Valuation Act, 1961.

Bereft of unnecessary details, the concise facts are that the plaintiffs-respondents nos.1 and 2 herein had filed a suit for partition in the year 2003.

The petitioner-defendant no.6 had field a written statement on 5.7.2006 and raised a specific objection in para no.17 regarding valuation of the property in question. Based on the pleadings of the parties, the learned trial court after framing the issues has been proceeding with the matter.

Meanwhile, the petitioner-defendant no.6 filed an application on 27.2.2018 and prayed that the suit filed by the petitioner be returned/dismissed under Order VII Rule 11 of the Code of Civil Procedure, as the plaintiff has not paid requisite/applicable court fees and not properly valued the suit.

The petitioner's aforesaid application has been rejected by the learned trial court vide its order dated 12.3.2018, inter alia, observing that the court had already framed issue no.9, in this regard and the suit is pending consideration for last 10 years, for which the application under consideration does not merit acceptance at this stage.

Learned counsel for the petitioner contended that the learned court below has committed an error of law in rejecting the petitioner's application dated 27.2.2018. He contended that a bare look at the plaint and the relief claimed therein shows that the plaintiffs have neither valued the suit properly nor have they paid appropriate court fees.

I have heard learned counsel for the petitioner and perused the material available on record. Having gone through the plaint and the application filed by the petitioner and the order impugned, I am of the considered view that the court below has committed no error of law in rejecting the petitioner's application. It is not in dispute that the suit in question is pending for last 10 years, in which the petitioner had filed a written statement in the year 2006 and based on his objection, an issue in the form of issue no.9 has already been framed by the court. Said issue reads thus:

"9- vk;k oknh us tokc nkos ds iSjk la[;k 17 ds ¼c½ o ¼l½ ds vuqlkj oknh us tkucq>dj okn ewY;kdu de dj U;k; 'kwYd dh izoPuk dh gS] vr( oknh dk okn pyus ;ksX; ugh gS\

izfroknh ucaj N(\"

As a specific issue has been framed by the trial court, there was no need of allowing/adjudicating the issue of court fees pursuant to an application filed in Feb., 2018 after 10 years of the institution of the suit.

Be that as it may, as the learned trial court has not decided anything on merit of the contentions of the rival parties, as far as the valuation of the suit is concerned and has simply rejected the application not worthy of consideration in view of the facts obtaining in the present case.

This court concurs with the view taken by the learned trial court that the issue of court fees cannot be decided at this stage, which would require leading of evidence.

The writ petition is therefore, dismissed.

Needless to observe that the petitioner will be free to move appropriate application for deciding the issue of court fee, as a preliminary issue. As and when such an application is filed, the learned trial court shall decide the same in accordance with law, including the question as to whether the issue no.9 is required to be decided as a preliminary issue or not.