-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.7259 of 2007 Smt.Sulochana Lakshminarayan Shriram ..Petitioner vs. 1. Smt.Mallammabai Narsayya Shriram and others ..Respondents Ms.Manjiri S.Parasnis for petitioner. Mr.K.Y.Mandlik for respondent no.12. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. CORAM: S.C.DHARMADHIKARI J. 13th February, 2008 13th February, 2008 13th February, 2008 P.C. P.C. P.C. 1. The petitioner is the original plaintiff in Reg.Civil Suit No.55 of 2005 which is filed in the Court of Civil Judge, Jr.Dn., Solapur. 2. The contesting respondent before me is original defendant no.12. The suit prayers are that the partnership business of Shriram Family Agricultural Enterprises be dissolved, the shares of the plaintiff therein to the extent of 13.33% be granted along with the declaration that the right, title and interest of the plaintiff to the immovable property is exclusive. 3. The suit was filed on 31st January, 2005 and it is undisputed before me that the issues were -2- framed below Exe.26 and issue no.4 reads thus; "4. Does Defendant No.12 prove that suit is not properly valued.?" It appears that after the oral and documentary evidence was led, the learned Judge heard the arguments of both sides and reserves the matter for judgment. it appears at that stage that the Trial Court suo moto passed the impugned order and observed that above issue so also issue of Maintainability of the suit in the light of provisions contained in section 69 of the Partnership Act, 1932 be treated as a preliminary issue. According to the learned Judge, this course can be adopted because a request has been made in that behalf by the contesting defendant and plea of pecuniary jurisdiction so also the maintainability of the suit goes to the root of the matter. 4. The Trial Court on 9th April, 2007 directed the parties to lead evidence on the above issues, if they so desire. However, beyond noting the arguments of defendant no.12 to the suit, the matter in so far as the direction to lead evidence afresh, did not proceed. None of the parties produced evidence on the point of -3- correct valuation of the suit claim and accordingly direction came to be issued to the Sub Registrar to submit the valuation of the property that is subject matter of the suit. That order was delivered on 4th April, 2007 after which the impugned order has been passed on 20th July, 2007 whereunder the petitioner/original plaintiff is directed to amend the plaint for pecuniary jurisdiction and to pay the requisite court fees. 5. It is this course which is objected by the petitioner/original plaintiff before me. Both sides are agreed that the matter has been closed for final judgment. Both sides cannot and do not dispute that the stage of framing of issues is over long back. The matter having proceeded thereafter and is now reserved for judgment, it is rather surprising that at that stage the learned Judge took upon himself the task of deciding the issue of valuation of the suit claim as a preliminary issue and even though there was some dispute raised with regard to the valuation by the original defendant no.12, there was no material placed by him before the Court. The Enquiry was initiated by the Court itself. The Sub Registrar was directed to submit a -4- report to the Court and based upon which the learned Judge has valued the suit claim at Rs.3,44,08,000/- and has directed the petitioner to pay the Court fees on the basis of the share that she is claiming. It is pertinent to note that the issue of valuation was framed at the instance of defendant no.12. The trial was over. Original defendant no.12 led no evidence despite the impugned direction. He may or may not have placed necessary material at the stage of recording evidence. He does not seek any further opportunity. Therefore, the impugned orders and directions are ex facie erroneous and illegal. There is substance in the contention of Miss Parasnis that the attempt appears to be to somehow or other assist the original defendant No.12 in collecting evidence. 6. In my view, all this was not permissible in the peculiar facts of this case. If the learned Judge was of the view that the issue of jurisdiction goes to the root of the matter so also the issue of maintainability nothing prevented him from pronouncing the judgment on the issue of maintainability and the suit claim being under valued. These issues being already framed there is nothing like a judgment on the -5- preliminary issue, when all the issues are tried together. The learned judge may rest his conclusion and may not give any judgment in so far as the other issues are concerned, if he is so convinced about the jurisdiction of the court and maintainability of the suit. However, it was not permissible for him in this case to have reopened the trial which was concluded. In such circumstances the entire course adopted from 4th April, 2007 till 20th July, 2007 is wholly without jurisdiction and authority inlaw. The learned judge should now proceed and deliver the judgment and while delivering the judgment he may take into account all pleas that are raised by the parties with regard to maintainability of the suit and issue of jurisdiction. However, while rendering his judgment and decision he shall rely upon the oral and documentary evidence already led and not take into consideration the report of the Sub Registrar. The entire enquiry, which was suo moto, being without any basis and foundation in law, must be quashed and set aside. It is accordingly quashed and set aside. However, no opinion is expressed on merits of the case so also on the pleas of jurisdiction and maintainability and the learned judge to deliver the judgment taking -6- into consideration all issues that have already been framed and the material placed before him. The petition is allowed accordingly. No costs. (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.) (S.C.DHARMADHIKARI J.)