1 S.B.CIVIL MISC. APPEAL NO.1604/2002. Dinesh Kr. through LRs. VS. Smt.Sooraj Bai & Ors. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR ORDER S.B.CIVIL MISC. APPEAL NO.1604/2002. Dinesh Kumar (since deceased) through LRs. VERSUS Smt.Sooraj Bai and Others. 24.04.2009. HON'BLE MR.JUSTICE DALIP SINGH Mr.Rinesh Gupta, for the appellant. Mr.Shailesh Prakash Sharma, for the respondents. ***** Heard learned counsel for the parties. This appeal has been preferred against the order of remand passed by the learned appellate court allowing the appeal filed by the plaintiff-respondents vide judgment dated 28.08.2002. The fact in brief are that the plaintiff filed a suit for possession and mesne profits for the use and occupation of the property in dispute on the basis of title. The said suit was contested by the defendant- appellant and as many as ten issues were framed. The learned trial court framed Issue No.8 which is relevant for the purpose of this appeal, which reads as follows:- “8- आया वादमः त मकान की बाजारू कीमत एक लाख रूपये से कई गुना ज् यादा है एवं इस कारण वाद उिचत न् याय शुल् क पर ूः तुत नहीं होने से पोषणीय नहीं है ?" The learned trial court after recording the 2 S.B.CIVIL MISC. APPEAL NO.1604/2002. Dinesh Kr. through LRs. VS. Smt.Sooraj Bai & Ors. evidence proceeded to decide the aforesaid issue and held that the plaintiff had undervalued the suit. The relevant finding of the learned trial court is as follows:- "इस ूकार वादी की साआ य से वादमः त मकान की कीमत 45 हजार रूपये तथा वादमः त िहः से की कीमत 15000/- रूपये होना िसƨ नही होता है तथा ूितवादी की साआ य का खण् डन वादी की साआ य से नही होने की िः थित मे इस तनकी का िनः तारण ूितवादी के पक्ष मे तथा वादी के िवरूƨ िकया जाता है ।" It may be noticed here that the learned trial court was unable to give any finding based upon the evidence of the defendant-appellant as to what was the valuation of the share of the plaintiff in the house in question and it merely held that the valuation given by the plaintiff is not correct and is not proved. Accordingly, the learned trial court dismissed the suit with the following order:- "तनकी सं. 8 का िनः तारण ूितवादी के पक्ष मे तथा वादी के िवरूƨ होने की िः थित मे न् यायालय Ʈारा अन् य तनकीयात पर अपना िनं कषर् देना वांिछत नही है । तनकी सं. 8 के िनः तारण के अनुसार वादमः त मकान की बाजार कीमत वाद ूः तुत करते समय एक लाख रूपये से भी अिधक होना सामने आया है ऐसी िः थित मे वादी को उिचत न् याय शुल् क पर सक्षम न् यायालय के समक्ष वाद ूः तुत करना चािहए था जो वादी ने नही िकया है ए.आई.आर. 1992 (1) एस सी सी पेज 731 के अनुसार यिद वाद का अिधक मूल् यांकन होना सामने आता है तो न् यायालय वाद को सक्षम न् यायालय के समक्ष ूः तुत करने के िलए लौटा सकता है िकन् तु यिद वाद का मूल् यांकन कम िकया जाता है तो वादी का यह कृ× य ूकरण की जड तक ूहार करता है तथा ूितवादी की आपित पर वादी का वाद खाǐरज िकया जा सकता है वादी का सक्षम न् यायालय मे ूः तुत करने संबंधी िनदȶश न् यायालय केवल वादी Ʈारा लगाई गई कोटर् फीस को बचाने के िलए ही करता है अत: ूकरण की पǐरिः थितयɉ मे जहां वादी ने जानबूझकर कम मूल् यांकन कर कम कोटर् फीस चः पा कर वाद इस न् यायालय के समक्ष ूः तुत िकया है । इन पǐरिः थितयɉ मे मै वादी के वाद को लौटाने का आदेश नहीं देकर उÈ त न् याियक िविनँ चय की रोशनी मे वादी के वाद को खाǐरज करना उिचत समझता हं । ू " 3 S.B.CIVIL MISC. APPEAL NO.1604/2002. Dinesh Kr. through LRs. VS. Smt.Sooraj Bai & Ors. Against the order of dismissal of the suit, instead of return of the plaint for presentation before the proper court, the plaintiff-respondents preferred an appeal. The learned lower appellate court after having considered the material on record came to the conclusion that the defendant had failed to discharge the burden which rested upon the defendant since the defendant had challenged that the plaintiff had undervalued the suit. The learned appellate court while reappreciating the evidence on record held that the defendant failed to discharge the burden of showing that the property had been undervalued by the plaintiff and accepted the appeal holding that on the sole assertion of the appellant with regard to the valuation of the property as against the assertion of the plaintiff it could not be said that the property had been undervalued b the plaintiff and accordingly the learned appellate court held that the defendant- appellant before this court, had failed to prove that the suit property had been undervalued. The learned appellate court further held that even assuming that the plaint had been undervalued, the learned trial court was not justified in dismissing the suit and proper course would have been for return of the plaint for presentation before the proper court and, therefore, the order for dismissing the suit cannot be sustained. Accordingly, the learned appellate court reversed the finding on Issue No.8 and set aside the judgment and decree dated 04.09.2000 passed by the learned trial court and remanded the matter to the learned trial court for deciding the remaining issues on 4 S.B.CIVIL MISC. APPEAL NO.1604/2002. Dinesh Kr. through LRs. VS. Smt.Sooraj Bai & Ors. merits which the learned trial court had failed to decide while passing the judgment and decree dated 04.09.2000. Learned counsel for the appellant has reiterated the same submissions which were made before the court below with regard to the valuation of the property in dispute and has contended that the value of the entire house was about Rs.6,00,000/- and accordingly, the share of the plaintiff being 1/3rd in the same would come to about Rs.2,00,000/- but looking to the location of the house and the fact that the house is about 200 years old, the valuation in no case would be less than Rs.1,00,000/-. The learned counsel further contended that the learned appellate court has committed an error in deciding the appeal against the defendant-appellant and reversing the findings on Issue No.8 holding that the defendant has failed to produce any expert; either an Engineer or Valuer of the property to show what was its time value. He has contended that even the plaintiff failed to produce such evidence to substantiate that the valuation was correctly made, as mentioned in the plaint. So far as the aforesaid submissions are concerned, I am in agreement with the reasoning given by the learned appellate court that the objection having been raised with regard to the valuation of the property by the defendant, that the same is undervalued and the plaint is insufficiently stamped would lie upon the defendant who has raised the 5 S.B.CIVIL MISC. APPEAL NO.1604/2002. Dinesh Kr. through LRs. VS. Smt.Sooraj Bai & Ors. aforesaid objection and it was for the defendant- appellant to have proved by satisfactory evidence that the share of the plaintiff in the house in question has been undervalued. The learned trial court had afforded opportunity for leading evidence to both the parties on the aforesaid issue. It was open for the defendant to have brought the expert or Engineer or submit any report of a Valuer in that behalf after having the valuation of the property done by the expert. The defendant has merely given his valuation without any basis or expertise. The defendant having failed to discharge the aforesaid burden, in my opinion, the learned appellate court has not committed any error in deciding the Issue No.8 against the defendant who has failed to discharge the initial burden to show that the property was undervalued. In that view of the matter, the findings arrived at by the learned lower appellate court on Issue No.8 calls for no interference. So far as the order of remand is concerned, the learned appellate court has taken into consideration that the suit had originally been filed before the learned District Judge and thereafter on account of the change of jurisdiction based upon valuation of the suits came to be transferred to the learned trial court. The learned lower appellate court took into account the fact that the plaintiff had not chosen the forum of the trial court by deliberately undervaluing the suit and, therefore, no malafide could be attributed to the 6 S.B.CIVIL MISC. APPEAL NO.1604/2002. Dinesh Kr. through LRs. VS. Smt.Sooraj Bai & Ors. plaintiff for the choice of forum by undervaluation of the plaint. The learned appellate court, therefore, came to the conclusion that it was wrong on the part of the learned trial court to have dismissed the suit in its entirety and not returning the plaint for presentation in the proper court merely because of the findings on Issue No.8. In the facts and circumstances of the present case, since the findings on Issue No.8 arrived at by the learned appellate court have not been disturbed by this court in this appeal, I find no error in the order of the learned appellate court in remanding the suit for deciding the same after giving the findings on the remaining issues. In the facts and circumstances, the impugned order does not call for any interference. The Rule 23 of Order 41 C.P.C. enables the appellate court to whom an appeal is preferred against a decree in a suit which has been dismissed on a preliminary point and the learned appellate court reversed the said decree in appeal, the appellate court may remand the case to the learned trial court. It may, however, be added that it is open for the learned appellate court if it thinks proper to decide all the remaining issues itself also. However, since in the present case, the learned appellate court has decided against it as no finding was given by the learned trial court though the evidence has already been recorded, no exception can be taken to the order of remand passed by the learned appellate court. 7 S.B.CIVIL MISC. APPEAL NO.1604/2002. Dinesh Kr. through LRs. VS. Smt.Sooraj Bai & Ors. In the facts and circumstances, the appeal filed by the defendant is accordingly dismissed. The stay application also stands dismissed. The case is remanded to the learned trial court to decide the suit in accordance with the directions given by the learned appellate court in the impugned judgment dated 28.08.2002. The Registry is directed to return the record to the learned trial court forthwith. The parties are directed to appear before the learned trial court on 13.07.2009. There shall be no order as to costs. (DALIP SINGH),J. Solanki DS, Jr.P.A.