Judgment:
B.S. Chauhan, J.
1. This revision has been preferred against the order dated 25.9.2000, by which the learned trial Court has refused to try the preliminary issue as to whether the non-petitioner/plaintiff has paid the required court fee in the case for the suit for per-emptory rights and declaration at the initial stage.
2. While filing the suit seeking reliefs including declaration of sale deed as null and void, though the property had been valued for the purpose of Jurisdiction and court fee at Rs. 2,00,000/-, but the court fee of Rs. 200/-only has been paid. Petitioner-defendant filed an application that issue No. 6 regarding payment of adequate court fee may be decided as the preliminary issue at the initial stage as required under Order 14 Rule 2 of the Code of Civil Procedure, 1908 (for short, 'the Code'), which has been rejected by the learned trial Court. Hence this revision.
3. It has been submitted by Mr. Suresh Shrimalee, learned Counsel for petitioners, that the learned trial Court has committed a material irregularity in exercising its jurisdiction while not taking into consideration the provisions of Order 7 Rule 11 of the Code, which empowers the Court to reject the plaint if it comes to the conclusion that the proper court fee has not been paid and inspite of determination of issues and direction to make the deficiency good in a given time. The provisions of the Code has to be read as a whole. Moreso, the provisions of Order 14 Rule 2 provide for determination of preliminary issue at the initial stage.
4. On the contrary, it has been submitted by Mr. S.G. Ojha, learned Counsel for the non-petitioners that it is not mandatorily required that such an issue is to be determined at the initial stage, thus, the order impugned does not warrant interference by this Court in its limited jurisdiction under Section 115 of the Code.
5. I have considered the rival submissions made by the learned Counsel for the parties and perused the record.
6. In Smt. Tara Devi v. Sri Thakur Radhakrishna Maharqj AIR 1987 SC 2085, the Hon'ble Supreme Court considered a case as to whether the valuation made by the plaintiff himself is taken to be correct on its face value and proceed with the trial. The Apex Court held that the court fee has to be paid in view of the provisions of the Court Fee Act, 1870 and the valuation by the plaintiff is ordinarily to be accepted; however, plaintiff does not have any absolute right or option to place any valuation whatsoever on such relief and where the plaintiff manifestly and deliberately under-estimates the relief, the Court is entitled to examine the correctness of the valuation given by the plaintiff and to revise the same if it is patently arbitrary or unreasonable. While deciding the said case, the Hon'ble Supreme Court placed reliance upon its earlier judgments in Sathappa Chettiar v. Ramanathan Chettiw : [1958]1SCR1021 ; and Meenakshisundaram Chettiar v. Venkatachalam Chettiar AIR 1979 SC 989,.
7. In Commercial Aviation & Travel Company and Ors. v. Mrs. Vimla Pannalal : AIR1988SC1636 , reiterating the same view, the Hon'ble Supreme Court held that the Court must accept plaintiff's valuation tentatively unless it is found demonstratively arbitrary. The Court observed as under-
But there may be cases under Section 7(iv) (of the Court Fee Act, 1870 and the Suit Valuation Act, 1887) where certain positive objective standard may be available for the purpose of determination of the valuation of the relief. If there be materials or objective standards for the valuation of the relief, and yet the plaintiff ignores the same and puts an arbitrary valuation, the Court, in our opinion, is entitled to interfere under Order 7, Rule 11(b) of the Code of Civil Procedure, for the Court will be in a position to determine the correct valuation with reference to the objective standards or materials available to it...in such a case, the Court would be competent to direct the plaintiff to value the relief accordingly The plaintiff will not be permitted to put an arbitrary valuation dehors such objective standards or materials....The plaintiff cannot choose a ridiculous figure for filing the suit most arbitrarily where there are positive materials and/or objective standards of valuation of the relief appearing on the face of the plaint.
8. In Abdul Hamid Shamsi v. Abdul Majid : [1988]3SCR507 , the Hon'ble Supreme Court considered a case under the provisions of the Court Fee Act and the Suit Valuation Act and held as under
If a plaintiff chooses whimsically a ridiculous figure, it is tantamount to not exercising his right in this regard. In such a case it is not only open to the Court but it is its duty to reject such a valuation. The cases of some of the High Courts, which have taken a different view, must be held to be incorrectly decided.
Same view has been taken by the Calcutta High Court in Nalini Nath Mallick Thakur v. Radhashyam Marwari AIR 1940 Cal. 482, and Patna High Court in Kishori Lal Marwari v. Kumar Chandra Narain Deo AIR 1939 Pat. 572.
9. In Smt Cheina and Ors. v. Nirhhay Singh 1997 (1) RLW 688, this Court examined the scope of the provisions of Order 7 Rule 11 of the Code and observed that if an objection is raised and the application under Order 7 Rule 11 is filed, the Court is bound to decide such an application and if it appears to the Court that the valuation of the suit is ex facie arbitrary or absurd and if the Court, after determination, comes to the conclusion that the suit had been under-valued, it must direct the valuation to be amended or court fees to be paid in accordance with such valuation. Only in exceptional circumstances where it is not possible to determine the correctness of the valuation without taking evidence, the Court may not reject the plaint but keep the question open to be tried in the suit. The Court further held that even if the application under Order 7 Rule 11 of the Code has not been filed but valuation of the suit has been objected in the written statement, as it is a pure question of law, the Court must treat it as a preliminary issue and decide it as such at the initial stage. Similar view has been taken in Jagdish Rai and Ors. v. Smt. Sant Kaur : AIR1976Delhi147 , and Resham Lal and Ors. v. Anand Samp .
10. In Gauri Shanker v. Pukhrqj and Ors. 1989 (1) RLW 195, this Court has held that an issue as to the jurisdiction of the Court depending upon the valuation of the subject matter of the suit, has to be tried as a preliminary issue.
11. In Panna Lal v. Mohan Lal and Ors. , this Court examined a similar issue under the Rajasthan Court Fee & Suit Valuation Act, 1961 and held that if the defendant pleads in his written statement that the subject matter of the suit has not been properly valued, or that the court fees paid is not sufficient, questions arising on such plea shall be taken and decided before hearing of the suit as contemplated by Order 14 of the Code. The Court further held that in Section 11(2) of the Code, the Legislature has employed the word 'plead' and it has further been provided therein that all question arising out of such 'pleas' shall be heard and decided before the hearing of the suit as contemplated by Order 5 Rule 1 of the Code.
12. In Ratan Lal v. Roshan Lal and Ors. 1986 RLR 248, this Court, in a case similar to the case in hand, held that for the purpose of Rajasthan Court Fee & Suit Valuation Act, 1961, in a suit for pre-emption, valuation should be on consideration for sale which pre-emptor seeks to avoid. The Court held that if the pre-emptor wants to avoid 'sale' and not 'consideration', the suit should be valued on amount of consideration of sale mentioned in sale-deed or on market value of the property whichever is less.
13. In Maj. S.S. Khanna v. Brig. F.J. Dillon : [1964]4SCR409 , the Hon'ble Supreme Court considered the issue regarding the maintainability of a suit and held as under
Under Order 14 Rule 2 of the Code, where issues, both of law and of facts, arise in the same suit and the Court is of the opinion that the case or any part thereof may be disposed of on the issue of law only, it shall try those issues first, and for that purpose, may, if it thinks fit, postpone the settlement of issues of facts until after the issues of law have been determined. The jurisdiction to try issues of law apart from the issues of facts may be exercised only where in the opinion of the Court, the whole suit may be disposed of on the issues of law alone. But the Code confers no jurisdiction upon the Court to try the suit on mix issues of law and facts as preliminary issues. Normally, all the issues in a suit should be tried by the Court, not to do so, specially when the decision on issues even of law depends upon the decision of issues of facts will result in a lope-sided trial of the suit.
It may be pertinent to mention here that preliminary issue, which was sought to be tried first, was as to whether the suit was not maintainable and the plaintiff was not entitled to institute as alleged in paragraphs No. 15, 16, 17 & 18 of the written statement Thus, it was not one of the issues on the decision of which the plaint had to be rejected. It was an issue of maintainability of suit on the objections raised by the defendants.
14. In Amir Chand v. Harji Ram and Ors. 1986 RLR 985, this Court held that any issue of law, determination of which would dispose of the suit itself, must be decided as the preliminary issue and in case the trial Court has refused to do so, it would amount to committing material irregularity in exercise of its jurisdiction and the revisional Court must exercise its power and direct the trial court to decide the same as a preliminary issue.
15. The learned trial Court has placed reliance upon the judgments in A.V. Subrahmanyam and Ors. v. C. Venkatararnanammoa and Ors. : AIR1981AP147 , Iqramuddin and Ors. v. Nizamuddin and Ors. and Smt. Geeta Devi v. Shri Gopal Krishan Vashistha and Anr. 1996 (1) RLW 460, wherein this Court has held that the provisions of Order 14 Rule 2 of the Code are directory and not mandatory, therefore, it is obligatory for the Court to decide the issues of law and facts as the preliminary issue, but the Court may not be bound by it. With all due respect, as the scope of application of Order 7 Rule 11 of the Code as explained by the Apex Court in Commercial Aviation & Travel Company (supra), nor the other cases decided by this Court, as referred to above, have been considered, the said judgments remain per incurium. Such an interpretation would make the provisions of Order 7 Rule 11 of the Code redundant, thus not permissible. The case requires to be examined from another angle. If such an issue is decided at a final stage after recording the evidence etc. and hearing of the arguments and the Court comes to the conclusion that the suit had been under-valued and on proper valuation it did not have pecuniary jurisdiction over the matter, it would return the plaint to present it before the Court of competent jurisdiction. It will be wastage of time and labour of the Court and great injustice to the opposite party. In Raichander Mohanlal v. Permanand Sanghi : AIR1978AP349 , the Andhra Pradesh High Court held that where defendant raises the issue of pecuniary jurisdiction of the Court, the issue is to be decided first as a preliminary issue. Therefore, in view of that also, it is desirable that such an issue should be decided as a preliminary issue.
16. Thus, in view of the above, the revision petition succeeds and is allowed. The impugned order dated 25.9.2000 is set aside. The learned trial Court is requested to decide the issue of valuation of suit as a preliminary issue and in case the Court comes to the conclusion that the suit has been under-valued, it will value it correctly and ask the plaintiff to make the deficiency of court fees good within a stipulated period. There shall be no order as to costs.