CW-8630/09-Asha Rani & Anr. Vs. Sarswati Devi & Anr. Judgment dt.28.10.09 1/2 S.B. CIVIL WRIT PETITION NO.8630/2009 Asha Rani & Anr. Vs. Sarswati Devi & Anr. Date of order : 28th October, 2009 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Dr. Sachin Acharya for the petitioners. Mr. J.K. Byaiya for the respondents. ------- 1. Heard learned counsels. 2. This writ petition is directed against the order dated 13.8.2009 whereby the defendant's application requesting the court that issue No.13 regarding the Court fee may be decided first, as the plaintiff besides seeking eviction of the shop in question has also claimed declaration of the title as according to the defendant there was an agreement to sell of the said shop way back on 28.3.1979 and the plaintiff had sought declaration of the said shop declaring that the agreement is void. 3. Learned counsel for the respondent-plaintiffs submits that the issue is already framed and the evidence of plaintiff is almost over. This statement of the learned counsel for the respondents is disputed by the learned counsel for the petitioner-defendants. CW-8630/09-Asha Rani & Anr. Vs. Sarswati Devi & Anr. Judgment dt.28.10.09 2/2 4. Be that as it may, it appears that the issue relating to Court fees in the facts and circumstances of the case namely the issue No.13 deserves to be decided first as that goes to the root of the matter and since admittedly the plaintiffs claimed for declaration of the title over the shop in question as the title of the same is denied on the basis of an agreement dated 28.3.1979 which is also sought to be declared void by the plaintiff, the learned trial court should decide the said issue first as a jurisdictional issue, thereafter the trial may proceed. The defendant will also be free to cross-examine the plaintiffs during the course of evidence. 5. The writ petition is accordingly disposed of. No costs. [ DR. VINEET KOTHARI ], J. item No.1 babulal/