1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD WRIT PETITION NO. 680 OF 2009 Suresh s/o Wamanrao Muley Age 65 years, Occ. Agri and Pensioner R/o Goerai, Dist. Beed at present Plot NO.53, N-5 South, Sawarkar Nagar, CIDCO Aurangabad ...Petitioner Versus 1 Anil s/o Chandrakant @ Shivajirao Muley Age 35 years, Occ. Service as Medical Representative and Agriculture R/o Flat No.4, A- building Prabhawati Nagar, Opp. Shahnoormiya Dargah Osmanpura, Aurangabad 2 Sow. Kusumbai w/o Chandrakant @ Shivajirao Muley (deleted as per court’s order dated 3.7.2009) 3 Sow. Jaiyashree w/o Vivek Deshmukh Age 33 years, Occ. Household, R/o. Daya Bhagwant Niwas, Ambad Naka, Near Swayanwar Mangal Karyalaya Jalna, District Jalna ...Respondents ..... Mr. S.V. Natu, advocate for the petitioner Mr. S.P. Sonpawale, advocate for respondent Nos.1 and 3. ..... CORAM : S. S. SHINDE, J. DATE OF RESERVATION : 23 .09.2009 OF JUDGMENT DATE OF PRONOUCNEMENT : 30.09.2009 OF JUDGMENT 2 ORAL JUDGMENT:- 1 Rule. Rule made returnable forthwith. By consent of the counsel for the parties, the matter is taken up for final hearing. 2 This writ petition is filed challenging the judgment and order dated 20.11.2008 passed by the learned C.J.J.D. Georai below Exh.59 in R.C.S. No. 2.3.2005 thereby directing issue as to pecuniary jurisdiction to be treated as preliminary issue and the same be decided first. It is the case of the petitioner that he is original plaintiff, who filed R.C.S. No.213 of 2005 seeking declaration of ownership and recovery of possession of house No. 345/2 situated at Georai, from respondent. It is the further case of the petitioner that the suit house property was purchased in his name by registered sale deed dated 17.2.1959 in consideration of Rs.850/-. It is further case of the petitioner that after the death of father of the petitioner in 1974, equitable partition was carried out between the petitioner and three brothers, in which the suit house property came to the share of the petitioner and accordingly the petitioner continued as owner and possessor of the suit house. It is further case of the petitioner that he had raised further construction on the suit house in the year 1980 itself from his own funds. It is further case of the petitioner that after retirement in 2001, he started residing at Aurangabad and taking disadvantage of this fact, the respondent forcibly 3 took possession of the suit house. The petitioner requested the respondents to vacate the suit house and when they refused to vacate the premises the suit was filed by the present petitioner. It is further case of the petitioner that the valuation of the suit house property was Rs.850/- as per the record of the Municipal Council, Georai. The petitioner valued the same for jurisdiction of the court. The respondents herein appeared and filed written statement denying the title of the petitioner contending that the valuation of the suit property is more than Rs.2.00 lacs and therefore, the court has no jurisdiction to try the suit. The trial judge after framing necessary issues held that the issue as to pecuniary jurisdiction should be treated as preliminary issue and the same should be decided first and aggrieved by the impugned order, this writ petition is filed. 3 The counsel appearing for the petitioner submitted that the plaintiff has filed affidavit on examination in chief at Exh.34 on 19.12.2007. The respondent filed an application Exh.59 and prayed for treating and deciding the issue as to pecuniary jurisdiction as preliminary issue. The learned counsel for the petitioner submitted that the said application was resisted on the ground that the evidence has commenced in the matter and the petitioner being under cross examination, it would be proper to decide the issue involved in the suit and application Exh.59 is nothing but an attempt of the respondent to prolong the suit. It is further case of the petitioner that the trial 4 court has not appreciated the provisions of Order XIV Rule 2 of C.P.C. by which the court is bound to pronounce the judgment on all issues and therefore, the trail court should have decided all issues. It is further submitted that the question as to preliminary issue of the court is a mixed question of law and the fact which needs to be decided on the basis of the evidence of the parties. Learned counsel further submitted that the trial court should have recorded the findings that the application at Exh.56 complies with the criteria given in Order XIV Rule 2(2) of C.P.C. and in absence of such findings, the respondents are not entitled for decision on pecuniary jurisdiction as preliminary issue. Learned counsel further submitted that three years time has been lapsed between the commencement of the trial and till the application was taken up for hearing. Therefore, learned counsel would submit that the impugned order passed by the trial court deserves to be set aside. 4 Learned counsel appearing for the respondents submitted that in fact the valuation of the suit house is more than Rs.2.00 lacs therefore, the suit filed before the learned C.J.J.D. is not tenable in eyes of law. It is further case of the respondent that the contention of the plaintiff that the house in question is of Rs.850/- is false one. In fact the house in question is constructed by the father of the defendant by spending amount more than Rs.1.00 lac. According to the learned counsel for the respondent the house is having ground floor and first floor and is also upper portion. He further submitted that in view of the 5 provisions of Section 24 of the Bombay Civil Court Act, 1869 the court below before whom the R.C.S. No. 213 of 2005 is pending have no pecuniary jurisdiction to try the said suit. 5 After hearing counsel appearing for the parties and upon perusal of the impugned judgment and order passed by the trial court below Exh.59 in R.C.S. No.213 of 2005, it appears that the question of pecuniary jurisdiction is a mixed question of law and facts. Even if the averments in written statement filed by the respondents are taken into consideration, it is necessary to place on record some evidence by both the parties so as to reach to the conclusion that the suit house of particulars price. In the instant case, the petitioner has contended that the valuation of the suit shows Rs.850/- and on the contrary the respondents have contended that the valuation of the suit house is Rs.2.00 lacs. The suit was filed in the year 2005 and according to the learned counsel for the petitioner the valuation of the suit house relates back to the year 2005 and not in 2008. When both the parties are disputing the valuation of the suit house in question, it is incumbent on the part of the trial Judge to come to the definite conclusion about the valuation of the house. On careful perusal of the impugned order, it appears that the trial judge has framed all issues. The trial Judge has also taken a note of the fact that the plaintiff has filed his own affidavit as examination in chief and still he has not been cross examined by the defendant. It appears that more than three years time is lapsed from filing of the suit when the application was taken up for 6 hearing. Therefore, on perusal of the impugned order and after appreciating the contention advanced on behalf of the counsel for the respondent, there is no any infirmity in the order passed by the learned C.J.J.D. Georai framing the issue No.3 on the point of pecuniary jurisdiction to be treated as preliminary issue. However, the provisions of Order XIV Rule 2 mandates that the court should pronounce the judgment on all issues. Therefore, in the facts of this case, it would be appropriate if the trial court hears issues No.3 on the point of pecuniary jurisdiction as preliminary issue, however, the court should not pronounce judgment/order on said issue and to pronounce the judgment on all issue framed by him. Therefore, in the conclusion the issue No.3 can be treated as preliminary issue and the court can hear the said issue before other issues are heard. However, as Order XIV Rule 2 mandates that the court should pronounce the judgment on all issues the trial court when wants to pronounce the judgment should pronounce the judgment on all issues. Therefore, the the writ petition is partly allowed. Rule is partly made absolute to the above extent. Writ petition stands disposed of. *****