// 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Writ Petition No.514/2004 Shri Brij Mohan Mishra S/o Shri Roop Narain Mishra ...Defendant-Petitioner Versus Trust Mandir Shri Sitaramji, Shri Kumawat (Kshatriya) Panchayat Kali Chunewalan, Kalyanji-Ka-Rasta, Jaipur ...Plaintiff-Respondent AND Shri Laxman Singh Shekahawat and Another ...Defendant-Respondents Date of Order ::: 12.03.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Ajeet Bhandari, Counsel for petitioner Shri Sudesh Bansal, Counsel for respondent No.1 Shri S.N. Gupta, Counsel for respondent No.3 #### By the Court:- Heard learned counsel for the parties. Plaintiff-respondent No.1 filed a suit for eviction and arrears of rent and further to declare the sale-deed dated 30th November, 2000 as null and void, in the trial court, against the defendant-petitioner as well as defendant-respondents. The defendant No.2-petitioner filed an application in the trial court on 4th January, 2003 to decide Issue No.8 relating to payment of court-fee on the suit as, according to him, the court-fee paid on the suit was insufficient and the suit was liable to be dismissed. The trial court, vide its order dated 9th January, 2004, dismissed the said application of the defendant No.2-petitioner. The said order is under challenge in this writ petition filed under Article 227 of the Constitution of India. During the course of arguments, the learned counsel for the defendant No.2-petitioner seeks permission to withdraw his application dated 4th January, 2003 filed by him in the trial court under Section 11 of the Rajasthan Court Fees and Suit Valuation Act, 1961 and // 2 // submits that the Issue No.8 may be decided along-with the suit itself. The learned counsel for the plaintiff-respondent defended the impugned order and prayed for dismissal of the writ petition. After considering the submissions of learned counsel for the parties I find that for the purpose of deciding Issue No.8 the evidence will be required to be adduced by the parties looking to the present controversy involved in the suit as it is a mixed question of fact and law both, and, in these circumstances, I allow the prayer of the learned counsel for the defendant No.2-petitioner for withdrawal of his application filed under Section 11 of the Act of 1961. Consequently, the application dated 4th January, 2003, filed in the trial court by the defendant No.2 under Section 11 of the Act of 1961 is dismissed as withdrawn. As a result thereof, the impugned order dated 9th January, 2004 passed by the trial court also goes automatically. In view of the above, nothing remains to be decided in the writ petition and the same is accordingly dismissed with no order as to costs. Both the parties will be entitled to lead evidence on Issue No.8 also along-with other issues. The trial court will now decide the Issue No.8 along-with the main suit itself. The matter has been delayed, therefore, the learned counsel for the respondent prays that the trial court may be directed to decide the suit expeditiously. The prayer appears to be reasonable. The trial court is directed to decide the suit expeditiously. (Narendra Kumar Jain) J. //Jaiman// // 3 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN S.B. Civil Misc. Stay Application No.477/2004 In S.B. Civil Writ Petition No.514/2004 Shri Brij Mohan Mishra S/o Shri Roop Narain Mishra ...Defendant-Petitioner Versus Trust Mandir Shri Sitaramji, Shri Kumawat (Kshatriya) Panchayat Kali Chunewalan, Kalyanji-Ka-Rasta, Jaipur ...Plaintiff-Respondent AND Shri Laxman Singh Shekahawat and Another ...Defendant-Respondents Date of Order ::: 12.03.2008 Present Hon'ble Mr. Justice Narendra Kumar Jain Shri Ajeet Bhandari, Counsel for petitioner Shri Sudesh Bansal, Counsel for respondent No.1 Shri S.N. Gupta, Counsel for respondent No.3 #### By the Court:- Consequent upon dismissal of the writ petition itself, the stay application, filed therewith, does not survive and the same is also dismissed. (Narendra Kumar Jain) J. //Jaiman//