1. This is a petition under Section 115 of the Code of Civil Procedure against the order of the Subordinate Judge, Ist Class, Jagraon, refusing to try the following issue as a preliminary issue:--
'Whether the suit is properly valued for the purposes of court-fee and jurisdiction ?'
The other issues in the case are:--
1. Whether the plaintiff is the owner of the property in dispute?
2. Whether Messrs. Bhana Mal Brij Lal is a necessary party, being tenants in the property in dispute?
3. Whether the plaintiff is estopped from suing by his acts and conduct?
4. Whether Brij Lal, father of defendants 1 to 6 was a statutory tenant of defendant 7 If so, its effect?
5. To what amount the plaintiff is entitled on account of mesne profits from defendants 1 to 6?
2. The suit was for the possession of shop and its mesne profits. The value for purposes of court-fee was fixed at Rs. 2000/- for possession of the shop and Rs. 3000/- tentatively for the relief with regard to mesne profits. An objection was raised by the defendants-petitioners that the suit had not been properly valued for the purposes of court-fee and jurisdiction, which led to the framing of the preliminary issue. Under Order VII, Rule1 of the Code of Civil Procedure, the plaint has to contain a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and court-fee, so far as the case admits. Under Order VII, Rule 11 of the Code, the plaint 'shall be rejected where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so'. Reading both these rules together it follows that the trial Court has first to determine whether the suit has been properly valued for purposes of court-fee and proper court-fee has been paid. If proper court-fee has not been paid, the plaint has to be rejected and it cannot be tried on merits. The issue with regard to adequacy of the court-fee is, therefore, a preliminary issue which goes to the jurisdiction of the Court for entertaining the suit for trial. Such an issue has to be tried as a preliminary issue. If the plaintiff does not make good the deficiency in the court-fee, as determined by the Court, the plaint has to be rejected. In my view, therefore, even if the defendants had made the application for trying the issue with regard to court-fee and jurisdiction as a preliminary issue at a late stage, it did not disentitle them to pray for the trial of that issue as a preliminary one. It was the duty of the Court under Order VII Rule 11 of the Code of Civil Procedure to see, before entering on the trial of the suit, whether it had been properly valued for purposes of court-fee and proper court-fee had been paid. The matter should have been clear to the learned trial Court when it was alleged that the annual rent of the shop was Rs. 1,800/- and the market value of the shop had been fixed at Rs. 2,000/-. To any person with commonsense it should have occurred that the value fixed for the purposes of court-fee was inadequate, as it could (not) be said that the market value of the shop was equal to one year's rent. Since the effect of not making good the deficiency in court-fee, as may be determined by the trial Court, is the rejection of the plaint, it was absolutely necessary for the trial Court to try this issue as a preliminary issue before recording any evidence on other issues.
3. The learned counsel for the plaintiff-respondent has, however, vehemently argued that the application was belated, as has been held by the trial Court. He has relied on the judgments in Smt. Sarojini Roy v. Shivaram Poddar, AIR 1957 Pat 59; Abdul Latif Mohideen Khadiri v. Mohammad Labbai, AIR 1950 Mad 596 and Major S.S. Khanna v. Brig, F. J. Dillon, AIR 1964 SC 497. The Patna and Madras judgments only point out the desirability of the trial of all the issues together and not the trial of the suit piecemeal. In neither of these two cases the preliminary issue related to court-fee or jurisdiction of the Court. In the Supreme Court case, the preliminary issue which was sought to be tried was as under:--
'Whether the suit is not maintainable and the plaintiff is not entitled to institute as alleged in paragraphs Nos. 15, 16, 17 ad 18 of the written statement ?'
From the language of the issue, it is quite clear that it was not one of the issues on the decision of which the plaint had to be rejected. That issue related to the maintainability of the suit on the objections raised by the defendants and, therefore, that judgment is clearly distinguishable. In the Madras judgment, the preliminary issue which was sought to be tried was:-
'Is the suit as framed for any of the reliefs claimed therein not maintainable for want of a valid sanction of the Advocate-General?'
This again was a case in which the plaint could not be rejected. In the Patna case also the preliminary issue related to the question of maintainability of the suit, which is not one of the matters covered by Order VII, Rule 11 of the Code of Civil Procedure. The judgment of P.C. Pandit. J., in Babu Ram v. Pakiza Begam, 1972-74 Pun LR 848, is on all fours with the facts of this case and in that case the learned Judge held that an issue involving evidence can also be decided as a preliminary issue.
4. For the reasons given above, I hold that the learned trial Court acted illegally and with material irregularity in the exercise of its jurisdiction while refusing to try the issue with regard to court-fee and jurisdiction as a preliminary issue. The learned counsel for the defendants-petitioners has confined his relief to the market value of the shop only and not to the valuation of the suit for the purposes of mesne profits. So the only matter to be investigated for the purpose of court-fee is the market value of the shop in suit. The learned trial Court is directed to try this issue as a preliminary issue. This petition is accordingly accepted but the parties are left to bear their own costs. The parties through their counsel have been directed to appear before the learned trial Court on September 10, 1973.
5. Petition allowed.