Lsp IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION WRIT PETITION NO. 2959 of 2009 Samarnath Mahabal Pandey ...Petitioner v/s. Sanjay Kumar Babulnath Pandey & ors. ...Respondents Mr. Dinesh C. Shah for the petitioner. CORAM CORAM CORAM : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. : A.M.KHANWILKAR,J. DATED DATED DATED : MARCH 21, 2009 : MARCH 21, 2009 : MARCH 21, 2009 P.C. . Heard Counsel for the Petitioner. 2. I see no infirmity in the conclusion reached by the Court below in rejecting application Exhibit 161 whereby the Petitioner prayed for direction against the plaintiff to pay requisite additional Court fees as per the Provisions of Bombay Court Fees Act and for deciding preliminary issue regarding suit being barred by limitation and resjudicata. The Court has opined that the said issues cannot be dealt with as preliminary issue. It is well established position that only those issues which can be proceeded on the basis of admitted facts and in relation to which no evidence would be produced by the parties can be answered as preliminary issue; Indeed, if the issue is one of jurisdiction of the Court and if the situation provided in terms of Section 9A of CPC is attracted, that issue is required 2 to be decided as a preliminary issue even if it may involve recording of evidence. That is not the case on hand. 3. The question of directing the plaintiff to pay additional Court fee or of issue of limitation and resjudicata would not be covered by that situation. 4. Counsel for the Petitioner, however, relies on the decision of the Apex Court in the case of N.R.Govindrajan N.R.Govindrajan N.R.Govindrajan v/s. V.K.Rajgopalan (2005) 12 SCC 362. v/s. V.K.Rajgopalan (2005) 12 SCC 362. v/s. V.K.Rajgopalan (2005) 12 SCC 362. The reliance placed on this decision is entirely misplaced. The Petitioner has overlooked the position stated in this decision that the appellant was not proposing to adduce any evidence insupport of the plea taken in the written-statement regarding the issue of deficit Court fee. It is on that basis that the Court observed that the issue be decided as a preliminary issue. Counsel for the Petitioner then relies on another Judgment of the Apex Court in the case of Padamnath Padamnath Padamnath Goswami v/s. Banamali Das alias Banoram Das Goswami v/s. Banamali Das alias Banoram Das Goswami v/s. Banamali Das alias Banoram Das reported reported reported in in in (2004) 13 SCC 651. (2004) 13 SCC 651. (2004) 13 SCC 651. This is not an authority on the proposition that the issue of limitation ought to be decided as preliminary issue as is contended, even though it is a mixed question of fact and law. The observations in this decision is in the context of fact situation of that case wherein it is mentioned that 3 under no circumstances question of limitation can be said to be relevant and academic. 5. In the circumstances, no interference in exercise of writ jurisdiction is warranted. Dismissed. [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.] [A.M.KHANWILKAR,J.]