Himachal Pradesh High Court
Smt. Durga Alias Durgi Devi D/O Sh. Gule ... vs Rt on 13 December, 2016
Author: P. S. Rana
Bench: P. S. Rana
HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
.
Civil Revision Petition No.195/2015
Order Reserved on 06.12.2016
Date of order: 13.12.2016
Smt. Durga alias Durgi Devi d/o Sh. Gule Ram alias Gulab Chand
and others
of
....Revisionists/Defendants
Versus
rt
Sh. Tarlok Narain s/o Sh. Ved Ram and another
....Non-revisionist/Plaintiff & co-defendant No.4.
Coram:
The Hon'ble Mr. Justice P. S. Rana, Judge.
Whether approved for reporting?1 Yes
For revisionists/Defendants : M/s. Ritta Goswami and
Komal Chaudhary, Advocates
For non-revisionist No.1/Plaintiff: Mr. G. R. Palsra, Advocate
For non-revisionist No.2/co-
Defendant No.4. : Mr.Bharat Thakur, Advocate
P. S. Rana, J.
Order:
Present civil revision petition is filed under section 115 Code of Civil Procedure 1908 against judgment passed by learned Civil 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 15/04/2017 21:43:43 :::HCHP 2 Judge (Sr. Division) Mandi (H.P.) upon preliminary issues framed .
in C.S. No.66-I/2009 title Trilok Narain Vs. Durga alias Durgi Devi and others.
Brief facts of the case:
2. Sh. Trilok Narain plaintiff filed civil suit for declaration that of defendants are not owners in possession of suit land and they have lost their right, title and interest in suit land by law of limitation. It rt is pleaded that sale deed executed by co-defendants No.1 to 3 in favour of co-defendant No.4 be declared as null and void.
Consequential relief of permanent prohibitory injunction sought restraining defendants from interfering in peaceful possession of plaintiff in any manner. Alternative relief of possession also sought in case defendants succeed in dispossessing plaintiff from suit property during pendency of civil suit.
3. Per contra written statement-cum-counter claim filed on behalf of co-defendants No.1 to 3 pleaded therein that civil suit is not properly valued for purposes of Court fee and jurisdiction. It is pleaded that market value of suit land is Rs. 39,00,000/- (Thirty nine lac). It is pleaded that learned Trial Court has no pecuniary jurisdiction to try present suit. It is further pleaded that plaintiff has got no locus standi and cause of action to file present suit. It is further pleaded that plaintiff is estopped to file present suit. It is further pleaded that sale deed in favour of co-defendant No.4 is ::: Downloaded on - 15/04/2017 21:43:43 :::HCHP 3 legal and valid. It is further pleaded that mutation No.582 also .
sanctioned. It is further pleaded that suit land is in exclusive possession of co-defendant No.4 after sale. Prayer for dismissal of civil suit sought.
4. Per contra separate written statement filed on behalf of co-
of defendant No.4 pleaded therein that plaintiff has no cause of action to file present suit and present suit is time barred. It is rt pleaded that suit is not legally maintainable. It is further pleaded that plaintiff is estopped to file present suit by his act and conduct.
It is further pleaded that present suit is not properly valued for purposes of Court fee and jurisdiction. It is pleaded that co-
defendants No. 1 o 3 have executed registered sale deed in favour of co-defendant No.4 vide sale deed No. 128 dated 1.5.2009. It is pleaded that sale deed in favour of co-defendant No.4 is valid and legal. It is pleaded that plaintiff has no right, title and interest in suit land. Prayer for dismissal of civil suit sought.
5. Per contra written statement filed on behalf of proforma defendants No.5 & 6 pleaded therein that sale deed in favour of proforma defendants is valid and legal.
6. During pendency of civil suit co-defendants No.1 to 3 filed application under order XIV rule 2 read with section 151 CPC with prayer that issues of court fee and jurisdiction be decided as preliminary issues in civil suit No. 66 of 2009.
::: Downloaded on - 15/04/2017 21:43:43 :::HCHP 47. Per contra response filed on behalf of plaintiff pleaded .
therein that issues of court fee and jurisdiction could not be decided as preliminary issues in present case. It is pleaded that under order XIV rule 2 CPC Court is under legal obligation to frame issues arising out of pleadings of parties. It is further of pleaded that application is premature. Prayer for dismissal of application filed under order XIV rule 2 CPC sought.
8. rt Learned Trial Court framed following preliminary issues on dated 26.03.2015:
1) Whether suit of plaintiff is not valued properly for purposes of Court fees as alleged?
....OPD
2) Whether pecuniary jurisdiction to entertain the matter does not lie with the court as alleged?
....OPD
3) Relief.
9. Learned Trial Court decided both preliminary issues in negative. Feeling aggrieved against findings of learned Trial Court upon preliminary issues present revision petition is filed by revisionists.
10. Court heard learned Advocate appearing on behalf of revisionists and non-revisionists and Court also perused entire record of case carefully.
::: Downloaded on - 15/04/2017 21:43:43 :::HCHP 511. Following points arises for determination:
.
1) Whether civil revision petition filed by revisionists under section 115 Code of Civil Procedure 1908 is liable to be accepted as mentioned in memorandum of grounds of revision petition?
of
2) Relief.
Findings upon Point No.1 with reasons.
12. rt DW-1 Sh.Udham Singh Registration Clerk posted in office of Sub Registrar Mandi has stated that he is posted as Registration Clerk in office of Sub Registrar Mandi since 2007 and he has brought the summoned record. DW-1 has stated that document Ext.DW-1/A is correct as per record of Sub Registrar. DW-1 has further stated that he does not know whether consideration amount was given at the time of registration of sale deed or prior to registration of sale deed.
13. DW-2 Sh. Pitambar Lal has stated that he is marginal witness of sale deed. He has stated that contents of sale deed were read over by document writer. He has stated that thereafter contents of sale deed were explained to parties by Sub Registrar.
He has stated that consideration amount of sale deed was not paid in his presence. He has further stated that he could not state whether Rs.9 lacs paid or not.
::: Downloaded on - 15/04/2017 21:43:43 :::HCHP 614. Thereafter co-defendants No. 1 to 3 closed evidence upon .
preliminary issues. Thereafter learned Advocate appearing on behalf of plaintiff stated before learned Trial Court that plaintiff does not want to adduce any evidence upon preliminary issues.
15. Submission of learned Advocate appearing on behalf of of revisionists that Court fee ought to have been filed by plaintiff on the basis of market value of suit property or on the basis of sale rt consideration amount mentioned in sale deed and finding of learned Trial Court upon preliminary issue No.1 is contrary to law is decided accordingly. Preliminary issues were decided by learned Trial Court as per order XIV rule 2 Code of Civil Procedure 1908.
Order XIV Rule 2 Code of Civil Procedure 1908 is quoted in toto. (1) Notwithstanding that case may be disposed of on preliminary issue the Court shall subject to the provisions of sub-rule (2) pronounce judgment on all issues. (2) Where issues both of law and of fact arise in the same suit and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only it may try that issue first if that issue relates to (a) The jurisdiction of the Court (b) Bar to the suit created by any law for the time being in force and for that purpose may if it thinks fit postpone the settlement of other issues. It is held that CPC was amended in the year 1977 .w.e.f. 1.2.1977. It is held that only two issues ::: Downloaded on - 15/04/2017 21:43:43 :::HCHP 7 could be tried as preliminary issues by learned Trial Court in civil .
suit w.e.f. 1.2.1977. (1) Issue relating to jurisdiction of Court. (2) Issue relating to limitation. It is held that after amendment in CPC w.e.f. 1.2.1977 issue relating to value of Court fee cannot be decided as preliminary issue. It is held that object of amendment of in CPC relating to preliminary issue is avoidance of piecemeal trial and abridging protracted litigation. See AIR 1993 Allahabad 2 rt Manager Bettiah Estate Vs. Bhagwati Saran Singh. See AIR 1979 Madhya Pradesh 153 (Full Bench) Ramdayal Umraomal Vs. Pannalal Jagannathji. See AIR 1993 Kerala 210 Femina Handloom of India Vs. M.R. Verma & Sons.
16. Submission of learned Advocate appearing on behalf of revisionists that Trial Court has no pecuniary jurisdiction to try civil suit is decided accordingly. It is held that in view of notification of H.P. High Court No. HHC/PJ/93-1 dated 3.10.2013 learned Civil Judge (Sr. Division) has pecuniary jurisdiction to decide civil suit value of which does not exceed Rs.20 lac (Twenty lac). Onus to prove that learned Trial Court has no pecuniary jurisdiction was upon co-defendants No. 1 to 3. Although co-
defendants No. 1 to 3 pleaded in written statement that valuation of civil suit is Rs. 39 lac (Thirty nine lac) co-defendants No. 1 to 3 did not adduce any positive, cogent and reliable evidence in order ::: Downloaded on - 15/04/2017 21:43:43 :::HCHP 8 to prove that valuation of civil suit is Rs. 39 lac (Thirty nine lac).
.
DW-1, DW-2 when appeared in the witness box did not state that valuation of civil suit is Rs. 39 lac (Thirty nine lac). Defendants No. 1 to 3 did not examine any expert in order to prove that valuation of civil suit is Rs. 39 lac (Thirty nine lac). Plea of of defendants No. 1 to 3 that learned Trial Court has no pecuniary jurisdiction to try civil suit is rejected on the count of ipso dizit (An rt assertion made without pray). Even suit land is assessed to land revenue as per zamabandi placed on record. Even consideration amount mentioned in sale deed is Rs. 9,00,000/- (Nine lac).
17. Submission of learned Advocate appearing on behalf of non-revisionists that order of learned Trial Court is in consonance with law in view of decision given by Apex Court of India in Suhrid Singh @ Sardool Singh Vs. Randhir Singh & Others announced in Civil Appeal Nos. 2811-2813 of 2010 is decided accordingly. It is held that provision of Order XIV Rule 2 (2) (a) (b)CPC amended w.e.f. 1.2.1977 was not in issue with Hon'ble Apex Court of India in case cited supra. It is held that provision of Order XIV Rule 2 (2) (a) (b) CPC amended w.e.f. 1.2.1977 was not declared as null and void by Hon'ble Apex Court of India in ruling cited supra. It is held that ruling cited supra is distinguishable and is not applicable in present facts and circumstances of case. It is held that concept ::: Downloaded on - 15/04/2017 21:43:43 :::HCHP 9 of stare decisis would not apply in present case relating to Order .
XIV Rule 2 (2) (a) (b) CPC. See AIR 1958 SC 918 (Full Bench) title Maktul vs. Manbhan and others. It is held that after amendment in CPC w.e.f. 1.2.1977 as per provisions of order XIV Rule 2 (2) (a) (b) only two issues can be decided as preliminary of issues. (1) Issue relating to jurisdiction of Court. (2) Issue relating to limitation. Hon'ble Apex Court of India did not declare Order XIV rt Rule 2 (2) (a) (b) Code of Civil Procedure 1908 as null and void as of today. Hence it is held that learned Trial Court has committed illegality by way of deciding issue of Court fee as preliminary issue contrary to express provisions of order XIV Rule 2 (2) (a) (b) amended w.e.f. 1.2.1977. In view of above stated facts and case law cited supra point No.1 is decided accordingly.
Point No.2 (Relief).
18. In view of findings upon point No.1 judgment of learned Trial Court upon preliminary issue No. 1 is set aside. Judgment of learned Trial Court upon preliminary issue No.2 is affirmed. It is also observed by Court that in page 2 para 3 learned Trial Court has mentioned word 'The suit is dismissed due to clerical mistake'.
Words "The suit is dismissed" is ordered to be deleted. Parties are left to bear their own costs. Observations will not effect merits of case in any manner and will be strictly confined for disposal of ::: Downloaded on - 15/04/2017 21:43:43 :::HCHP 10 present revision petition. Parties are directed to appear before .
learned Trial Court on 30.12.2016. File of learned Trial Court along with certified copy of order be sent back forthwith. C.R. No.195/2015 is disposed of. Pending application(s) if any also disposed of.
of
December 13, 2016rt (P. S. Rana),
(rana) Judge.
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