<? IN THE HIGH COURT OF CHHATTISGARHAT BILASPUR W.P. 1227) No. 7<-<^ /2010 PETITIONERS .'^ ^" ^/x,y ^•'^/ •^'^" ^•" Dr. &nrt. R. Shashi Kumar, D/o Dr. Raghwan Aachari, aged about 40 year's. ^"2. Dr-SiHfe^Aabha Shashi Kumar W/o Dr. R. Shashi Kumar Aachari, Aged about 38 Year's Both the resident of .1^/B?^/--2-^ Q.NO. l-A', Sec'tor-10 Bhilai, Distt- Durg (C.G.) VERSUS RESPONDENTS ,1. Smt. Mamta Pandey D/o Rajeshwar Pandey,(W/o Arun Kumar @ Raju Padhi) aged about-24 year's Caste- Brahman, R/o Village-Chikhalkalmari, Tah- Jagdalpur, Distt-Bastar (C.G.) 2. Arun Kumar @ RajuS/o Gadadhar, Aged about- 29 year's R/o Aasana, Jagdalpur. Distt-Bastar (C.G.) Sharma,^t5r.(^•)k^^i P'^^' Smt Lagu 3. Mukesh Narsing Home, Near Anupama Takies, Jagdalpu (C.G.) 4. Dr. Smt, Prabha Chouhan, Near Jain Mandir Thakur Road, Jagdalpur (C.G.) 5. Shailendra Chouhan, Advocat, R/o- Near Jain Mandir Thakur Road, Jagdalpur, AT Present Address-Civil -SOueit. Class-2 Raigarh (C.G.) i^ 6. State of C.G. Through- The Collector, Bastar, Jagdalpur (C.G.) WRIT PETITION UNDER ARTICLE 227 THE CONSTITUTION OF INDIA ^ A K' mGHCOURT OF CHHATTISGAKRAT BILASPUR S.B: Hon'ble Shri Prashant Kumar Mishra Writ Petition (227) No. 7565/2010 PETITIONERS RESPONDENTS : r. R. Shashi Kumar and another Versus Smt. Mamta Pandeyand ofliers. Appearance: Shri P.S. Koshy, counsel for the petitioners. Shri Vinod Tekam, PL forrespondentNo.6 on advance copy. WRIT PETITION UNDER ARTICLE 227 OF THE CONSTmjTIONOF INDIA ORALORDER ' (27.01.2011) The Appellate Court, by the impugned order, has allowed the appeal preferredbytherespondentNo.l/plaintiffwhichmtum was preferred to challenge the order passed by tiie Trial Court on 3/10/2008 retuming the plaint under Order 7 Rule 10 of CPC for its presentation before the competent court having pecuniary jyrisdiction. (2) Plaintiff's suit is for deelaring her to be the executor ofthe deed of adoption of minor Abhay and for declaring the deed of adoption dated 29/05/2005 asiUegal and void. The defendants in the suit raised an objection regardmg maintainability ofthe suit in the CourtofCivil Judge Class-II on the ground tiiat the suit has notbeen properly valued and from the statement in the plaint it is clearly established that the Court of Civil Judge Class-II would not have the c:i! asse...s.^ 1- 4'^ jurisdiction. The Trial Court framed additional issue No.5 and 6, treated the same as preliminary issue and vide order dated had found the said issues to be proved against the plaintiff iater-alia holding that the suit is not within pecuniary jurisdiction of Civil Judge Class-II and thus the plaint was ordered to be retumed for its presentation before the Court having jurisdiction. (3) The plaintiffpreferred the Misc. Appeal before the Additional District Judge which has been allowed by the impugned order. (4) Leamed counsel for the petitioner would argue that leamed Appellate Court should not have interfered witfi the reasoned order passed by the Trial Court. According to him the issue regarding valuation of the suit was a pure question of law, therefore the Appellate Court has wrongly held that the said issue was a mixed question of law and fact. He would farther submit that in any case the leamed Appellate Court should have left the issue to be tried along with other issues, but the operative part of the Appellate Order contained in paragraph 9 would suggest that the said issue has not been left open to be decided in course oftrial. (5) With regard to the first conteiirion, this Court is not convinced that tfae issue regarding valuation ofthe suit was pure question oflaw. The question as to what property would ultimately fall in the share of minor Abhay or valuation ofthe property as also the nature ofthe suit ^>r a declaration that the adoption is valid or invalid, would ultimately be decided on the basis of evidence led by the parties. Bs- ^t^MK^ ^& Sh t .,/y"^ s %i-^['^ %-..f^' fi •^KES^".. -3 ^y^ Thus, tfae issue regarding valuation is found to be mixed question of law and fact in view of the pleadings made iri the plaint and the wntten statement. (6) The second contentipn raised by leamed counsel for the petitioner regarding the operative part in para 9 of the impugned order appears to be reasonable in as much as Aough in para 8 ofthe impugned order leamed First Appellate Court has recorded a finding that the issue regarding valuation is mixed question of law and fact yet in para 9 of the order it has not been subsequently stated that the said issue shall be tried along with other issues and shall agam be decidedin course oftrial. (7) In view ofthe above, it is direeted that the issue No.5 and 6 earlier decided by the Trial Court as preliminary issues shall be tried along with other issues asthey are mixed question oflaw and fact and that the Trial Court,while delivering thejudgment shall decide these issues first in point oftime before proceeding to discuss and decide the other issue because if ultimately it isfound that fhe suit is not within the jurisdiction of Civil Judge Class-II, the finding on Qther issues would be redundant. (8) With this observation, the instaatpetition stands disposed of. Sd//- Prashant Kumar Mishra --~ Judge ^^SE^^^SSiaefrsi.Artri.Ea^a^afa^ ••isf1