M/S Shanti Colonizers And Developers vs Nagar Palika Parishad Itarsi on 1 March, 2024

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Madhya Pradesh High Court

M/S Shanti Colonizers And Developers vs Nagar Palika Parishad Itarsi on 1 March, 2024

Bench: Dwarka Dhish Bansal

                                                            1
                          IN     THE       HIGH COURT OF MADHYA PRADESH
                                                AT JABALPUR
                                                   BEFORE
                                  HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
                                                ON THE 1 st OF MARCH, 2024
                                              CIVIL REVISION No. 426 of 2016

                         BETWEEN:-
                         M/S SHANTI COLONIZERS AND DEVELOPERS THR.
                         PROP. AJAY JAIN S/O MAHAVEER PRASAD JAIN R/O
                         123-A FIRST FLOOR AAKANSHA 2, PRESS COMPLEX
                         ZONE, 1 MP NAGAR (MADHYA PRADESH)

                                                                                           .....PETITIONER
                         (SHRI A.A AWASTHI - SENIOR ADVOCATE ALONG WITH SHRI ABHAY
                         TIWARI - ADVOCATE)

                         AND
                         NAGAR PALIKA PARISHAD ITARSI THR. CHIEF
                         EXECUTIVE CHAIR PERSON MUNICIPAL COUNCIL
                         ITARSI (MADHYA PRADESH)

                                                                                         .....RESPONDENT
                         (BY SHRI SANJAY SARWATE - ADVOCATE)

                               Th is revision coming on for hearing this day, th e court passed the
                         following:
                                                              ORDER

This civil revision has been preferred by the petitioner/plaintiff challenging the order dated 03.10.2016 passed by Additional District Judge, Itarsi, in Civil Suit No.32-A/2013 whereby while deciding the issue no 7 & 8 as preliminary issues trial Court has directed the plaintiff to value the suit at Rs.1,01,23,456/- and to pay requisite ad valorem court fees thereon.

2. Learned counsel for the petitioner/plaintiff submits that at the stage of evidence of the defendant, trial Court without any prayer of the defendant, proceeded to decide the issue no.7 & 8 as preliminary issues. By inviting Signature Not Verified Signed by: SATTYENDAR NAGDEVE Signing time: 3/5/2024 6:01:04 PM 2 attention to the provisions contained under Order 14 Rule 2 CPC, learned senior counsel submits that the Court has no jurisdiction to decide such issues as preliminary issues, which require evidence, regarding which the plaintiff has already adduced its evidence. He submits that both the issues no.7 & 8 should be decided along with other issues only after recording evidence of the defendant. With these submissions he prays for allowing the civil revision.

3. Learned counsel appearing for the respondent supports the impugned order and prays for dismissal of civil revision with the submission that trial Court has not committed any illegality in passing the impugned order.

4. Heard learned counsel for the parties and perused the record.

5. Compilation of order sheets (Annexure-P/4 & P/5) shows that after completion of evidence of the plaintiff, the case was fixed for evidence of the defendant vide order dated 01.09.2016 and thereafter, Court below itself vide order dated 20.09.2016 fixed the case for deciding the issue no.7 & 8 as preliminary issues, in pursuance of which trial Court heard arguments of the parties and decided the issue no.7 & 8 against the plaintiff vide impugned order dated 03.10.2016.

6. In my considered opinion, the method and manner in which trial Court had proceeded to decide the issue no.7 & 8, is not known to the provision contained in order 14 Rule 2 CPC. As such, without commenting upon merits and demerits of the impugned order, this Court is of the considered opinion that the issue no.7 & 8 should be decided along with other issues after recording evidence of the defendant and at the time of final adjudication of the civil suit.

7. Resultantly, trial Court is directed to proceed further with the civil suit and to decide the issue no. 7 & 8 afresh after evidence of the defendant and at Signature Not Verified Signed by: SATTYENDAR NAGDEVE Signing time: 3/5/2024 6:01:04 PM 3 the time of final adjudication of civil suit, that too without being influenced by the impugned order dated 03.10.2016.

8. Needless to mention here that if at the time of final adjudication of suit, trial Court comes to conclusion that the plaintiff is liable to pay certain amount of court fee, the plaintiff shall be bound to pay such court fee and trial court would be at liberty to recover it from the plaintiff by taking coercive steps.

9. With the aforesaid, this civil revision is disposed off.

10. Pending application(s), if any, shall stand disposed off.

(DWARKA DHISH BANSAL) JUDGE SN Signature Not Verified Signed by: SATTYENDAR NAGDEVE Signing time: 3/5/2024 6:01:04 PM

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