: 1 : SD IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION CIVIL APPELLATE JURISDICTION FIRST APPEAL NO.925 OF 2000 FIRST APPEAL NO.925 OF 2000 FIRST APPEAL NO.925 OF 2000 WITH WITH WITH CIVIL APPLICATION NO.7322 OF 2000 CIVIL APPLICATION NO.7322 OF 2000 CIVIL APPLICATION NO.7322 OF 2000 Vitthal Sahadu @ Sadhu Bhujbal & Anr. ...Appellants V/s. Dattatray @ Dattu Raghu Bhujbal & Ors. ...Respondents Mr.S.G. Page, Advocate, for the Appellants. Mr.R.J. Soni, Advocate, for Respondent No.1. Mr.A.C. Sarkate, Advocate, for Respondent No.6. Ms.R.C. Nichani, Advocate, for Respondent No.13. Mr.G.H. Keluskar, Advocate, for Respondent No.14 to 19. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. CORAM : ABHAY S. OKA, J. DATE : 10TH MARCH, 2008. DATE : 10TH MARCH, 2008. DATE : 10TH MARCH, 2008. JUDGMENT: JUDGMENT: JUDGMENT: 1. Heard Advocates appearing for the parties. On 6th November, 2000, this Court issued notice before admission with a direction that the Appeal will be disposed of finally at the admission stage. 2. By the impugned Judgment and Decree dated 30th March, 2000, the learned 3rd Joint Civil Judge Senior Division, Pune has rejected the plaint filed by the appellants in exercise of powers under Clause (d) of Rule 11 of Order VII of the Code of Civil Procedure, : 2 : 1908. 3. The suit was filed by the appellants praying for partition and separate possession of the properties described in Clause (A) of paragraph No.1 of the plaint. A prayer for declaration was made in respect of the properties described in clause (B) of paragraph No.1 of the plaint to the effect that the said properties were exclusively owned by the appellants and neither the defendants nor the joint family had any right, title or interest in respect of the said properties. Another prayer for declaration was made to the effect that the alienation made by the original defendant Nos.1 to 12 in favour of defendant Nos.13 to 19 was illegal and not binding on the appellants-plaintiffs. 4. It appears that there was an application for temporary injunction filed by the appellants. There was also an application made by the appellants for grant of leave under sub-rule 3 of Rule 2 of Order II of the Code of Civil Procedure, 1908. There was an application made by the contesting defendants for rejection of the plaint. There was also an application made by the contesting defendants for framing preliminary issue of jurisdiction. The : 3 : impugned Judgment and Order shows that the preliminary issue of jurisdiction was framed by the learned Trial Judge and while deciding the said preliminary issue, the plaint has been rejected. 5. After having heard the learned Advocates appearing for the parties, I find that the impugned Judgment and Order is totally unsustainable on more than one ground. It is obvious from the impugned Judgment and Order that the learned Trial Judge heard the parties on the preliminary issue of jurisdiction framed in exercise of powers under Section 9A of the said Code. In paragraph No.6 of the impugned Order, the learned Trial Judge has recorded a finding that the suit was prima-facie barred by limitation. In paragraph No.7, the learned Judge has referred to prayer clause (c) of the plaint. In paragraph No.8 of the impugned Order, the learned Judge has referred to the valuation clause in the plaint. In the last paragraph, the learned Judge has observed that the plaintiffs-appellants have not paid Court fees for setting aside the sale deed executed in the year 1995 and that the valuation made by the appellants was incorrect. The learned Trial Judge held that only on the ground that the valuation made was incorrect, the suit was not tenable. : 4 : 6. Thus, there is no finding recorded on the issue of jurisdiction. The finding on the issue of limitation is only a prima facie finding. The finding on the basis of which the plaint is rejected is that the valuation of the suit made by the appellants is incorrect. Ultimately, the Court has rejected the plaint by invoking the clause (d) of Rule 11 of Order VII of the said Code which provides that the plaint shall be rejected where the suit appears from the statements in the plaint to be barred by any law. There is no finding recorded by the learned Trial Judge that the suit appears to be barred by any law from the statements made in the plaint. 7. If the plaint was to be rejected on the ground that the suit was insufficiently stamped, clause (c) of Rule 11 enjoins that the Court to call upon the plaintiffs to pay deficit Court fees within a specific time and the plaint can be rejected only if plaintiff fails to comply with the order of payment of deficit Court fees within the stipulated time. The preliminary order contemplated by clause (c) is admittedly not passed by the learned Trial Judge. 8. The net result is the order impugned is : 5 : completely illegal and deserves to be quashed and set aside. It is obvious that if the application for temporary injunction is still pending, the learned Trial Judge will have to decide the preliminary issue of jurisdiction framed under Section 9-A of the said Code. It is obvious that the issue of limitation and issue of valuation of the suit for the purposes of Court fees will have to be also kept open. 9. Hence, I pass following order:- "O R D E R" "O R D E R" "O R D E R" (a). The impugned Judgment and Order dated 30th March, 2000 is quashed and set aside and Special Civil Suit No.697 of 1999 is restored to the file of the Trial Court. (b). If interim application for injunction or for appointment of Court Receiver is pending, the learned Trial Judge will decide the preliminary issue of jurisdiction which is already framed. (c). It is clarified that the issue of bar of limitation as well as the issue of : 6 : valuation of the suit for the purposes of jurisdiction and Court fees are expressly kept open. (d). It is also made clear that from 4th December, 2000, there is no interim or ad-interim relief operating in favour of the appellants. (e). The Appeal is allowed in above terms with no orders as to costs. (f). In view of this order, Civil Application No.7322 of 2000 does not survive and the same is disposed of. [ABHAY S. OKA, J.] [ABHAY S. OKA, J.] [ABHAY S. OKA, J.]