1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 1035 of 2007 SHRI BABA RAMDEO VIKAS SAMITI V/S ADDL.CIVIL JUDGE (J.D.)NO.2 JODH.& ORS. Mr. MC BHOOT, for the appellant / petitioner Mrs. P DAVE, for the respondent Date of Order : 7.1.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI MOHAMMAD RAFIQ,J. ORDER ----- The matter comes up for admission. However in the peculiar facts and circumstances of the case, with the consent of the learned counsel for the parties, the appeal is being decided finally as the effected persons being appellant and respondent No.2 are represented. The facts of the case are, that the plaintiff- respondent No.2 filed a suit for injunction against the appellant in the Court of Civil Judge (Jr.Div.) No.2, Jodhpur, praying for various types of injunctions, and also claiming refund of Rs.5223/-, being the amount received by the defendant No.1, present petitioner, and having been deposited in the bank, then in para 4, positive averment has been made by the plaintiff about the present appellant having denied title of the plaintiff and having claimed title in himself. Identical averment has been made in para 7 of the plaint. In these circumstances, the appellant 2 filed an application under Section 11(1 & 2) of the Rajasthan Court Fees and Suits Valuation Act, alleging inter-alia that according to Section 26(a) even injunction suit is required to be valued, on the basis of the market value of the subject matter, and the valuation is to be done in accordance with Section 24 of the Rajasthan Court Fees and Suits Valuation Act. Further it was alleged, that the valuation of the property is much higher, as the property comprises of 4773 sq.yards of land, present market value whereof exceeds Rs.1 crore. It was argued that if that be so, learned trial Court would not have jurisdiction to try the suit. Learned trial Court vide order dated 14.8.2007 dismissed this application, on the ground that the defendant had earlier filed an application under Order 7 Rule 11 read with Order 7 Rule 10, which application was dismissed on 29.5.2007 and in that order, it was found that present suit is not a suit for declaration, and once it has been found that the suit is not a suit for declaration, all objections regarding valuation of the suit go away. It has also been observed, that all these objections have already been raised in the written-statement, and they cannot be decided at this stage. In the opinion of the learned trial Court the defendant simply wanted to prolong the litigation. With these conclusions, the application has been dismissed. This order was assailed by way of a writ petition 3 before this Court, and the learned Single Judge found, that in view of the fact that application of the appellant filed under Order 7 Rule 11 read with Order 7 Rule 10 had been rejected on 29.5.2007, the defendant cannot be permitted to take plea about jurisdiction of the Court and valuation of the suit in peace meal. Therefore, the writ petition was rejected. It is contended by the learned counsel for the appellant, that from a bare reading of Section 11, it is clear, that the objection as raised cannot be said to be barred, simply on account of the fact, that earlier application filed by the appellant under Order 7 Rule 11 read with Order 7 Rule 10 CPC had been dismissed. It was submitted, that even if, as found by the learned trial Court, that the present suit is not a suit for declaration, and is merely a suit for injunction, still in view of the language of Section 26(a), the Court fees is required to be computed to a particular extent, based on market value of the property, or Rs.300/-, whichever is higher. That being the position, the learned trial Court was required to decide the application on merits, and could not dismiss it on the ground of this objection having not been taken in the earlier application. Learned counsel for the respondent, on the other hand supported the impugned order, by submitting that the suit is a mere suit for injunction, on which valuation has been put by the plaintiff, according to the plaintiff's 4 choice. We have considered the submissions, and find, that in view of the language of Section 26(a), coupled with the fact that the objection is likely to have the effect of effecting the pecuniary jurisdiction of the learned trial Court, the learned trial Court is required to decide the application (Annex.3) filed by the appellant before the learned trial Court, on merits and in accordance with law. It is made clear that any observations made in this order need not be taken by the learned trial Court to be expression of any opinion on the part of this Court, about existence or otherwise of the pecuniary jurisdiction of the learned trial Court, or about the valuation of the Court fees, or about the extent of Court fees likely to be paid. The appeal is, accordingly, allowed and the impugned orders are, therefore, set aside. The learned trial Court is directed to decide the application on merits in accordance with law, and expeditiously. ( MOHAMMAD RAFIQ ),J. ( N P GUPTA ),J. /sushil/