Question of court fees is to be decided as preliminary issue

In the considered opinion of this Court, the question involved in
this matter is no more res ingetra. The Apex Court in AIR 1992 SC
1526 (Sujir Keshav Nayak Vs. Sujir Ganesh Nayak) opined that where
the question of court fee is linked with jurisdiction, a Defendant has a
right to raise objection and the court should decide it as a preliminary
issue ( para 5). The said judgment is followed by the Himachal
Pradesh High court in AIR 1994 HP 27 (Dr. Om Prakash Rawal Vs. Mr.
Justice Amrit lal Bahri).

HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SB: Hon'ble Shri Justice Sujoy Paul
W.P. No.6539/2013
Suryapal Singh
Vs.
Smt. Sudha Tomar
AIR 2014 Madhya pradesh 23

DATED; 18 /12/2013

By filing this petition under Section 227 of the Constitution of
India the petitioner has called in question the order passed by the 9th
Civil Judge Class-II, Gwalior in Civil Suit No. 16A/2013 dated
02.09.2013. By this Order, the application of petitioner / defendant
preferred under Order 15 Rule 3 C.P.C is rejected.
2.
Brief facts necessary for adjudication of this matter are as
under:-
(i) Plaintiff filed the suit for partition and permanent injunction.
An application under order 7 Rule 11 C.P.C was filed by the
petitioner / defendant on the ground that the valuation of the
suit is not proper. The said application was rejected by the
Court below on 15.01.2013. The Court below opined that this
question of valuation is a mixed question of facts and law and
therefore, it cannot be decided without recording evidence.
(ii)
Then the Court below on 01.08.2013 framed six issues.
Issue No.5 was framed regarding valuation of the suit. The
petitioner thereafter filed application under Order 15 Rule 3
C.P.C praying for deciding issue No. 5 as a preliminary issue.
This application was opposed by the defendant / respondent.
The Court below by impugned order rejected the same. The
Court below opined that the question of valuation is mixed
question of facts and law, it cannot be decided as preliminary
issue.

3.
Criticizing this order Shri Sanjay Kumar Sharma, Advocate for
the petitioner, submits that question of proper valuation has a nexus
with pecuniary jurisdiction of Court. The Court, therefore, must decide
this issue has preliminary issue. He relied on certain judgments.
4.
Prayer is opposed by Shri Purushottam Rai. He submits that if
said issue is decided as preliminary issue, it will delay the proceedings
and it will not be in the interest of justice.
5.
I have heard learned counsel for the parties and perused the
record.
6.
In the considered opinion of this Court, the question involved in
this matter is no more res ingetra. The Apex Court in AIR 1992 SC
1526 (Sujir Keshav Nayak Vs. Sujir Ganesh Nayak) opined that where
the question of court fee is linked with jurisdiction, a Defendant has a
right to raise objection and the court should decide it as a preliminary
issue ( para 5). The said judgment is followed by the Himachal
Pradesh High court in AIR 1994 HP 27 (Dr. Om Prakash Rawal Vs. Mr.
Justice Amrit lal Bahri).
7.
In para 5 of application (Annexure P/5) the petitioner has
specifically pleaded that the question of court fee has a direct relation
with the pecuniary jurisdiction of the Court and therefore, it should be
decided as preliminary issue. The case of the present petitioner is
squarely covered by the judgment of Supreme Court in Sujir Keshav
Nayak (supra). The Court below, in the considered opinion of this
Court, has erred in rejecting the application for deciding the issue No.5
as a preliminary issue. Reason assigned by the Court below is
unsustainable. Even if the issue is mixed question of facts and law,it
can very well be decided as a preliminary issue.
8.
Resultantly, following the judgment of Sujir Keshav Nayak
(supra), the impugned order dated 02.09.2013 is set aside. Application
under Order 15 Rule 3 is allowed. The Court below is directed to
decide the issue No. 5 as preliminary issue in accordance with law.
9.
Sarathe/-
Petition is allowed to the extent indicated above. No Costs.
(SUJOY PAUL)
Judge