IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No. 162 of 2007 Date of Decision: 21.5.2008 ________________________________________________________________ Sohan lal (dead) LRs. Nirmla Devi & ors. … Petitioners Versus Pawan Kumar & ors. … Respondents. ________________________________________________________________ Coram: The Hon’ble Mr. Justice Deepak Gupta, Judge. Whether approved for reporting? For the Petitioner (s) : Mr. Ajay Kumar, Advocate. For the Respondent(s) : Mr. Dharamvir Sharma, Advocate. ________________________________________________________________ Deepak Gupta, J. (Oral ). This petition is directed against the order of the learned Civil Judge (Jr. Div.) Court No.IV, Mandi dated 24.4.2007 whereby she has held the suit to be properly valued for the purposes of court-fee and jurisdiction. The respondent, hereinafter referred to as the plaintiff, filed a suit. The prayer clause of the suit reads as follows:- “It is, therefore, respectfully prayed that in view of the submissions made above, it be declared that the plaintiffs are having ½ share in the entire suit property and after determination of the shares of the plaintiffs in the suit property, it be also declared that the suit property is liable to be partitioned by meets and bounds between the parties and the plaintiffs be 2 put into the possession of the suit property, which is to be allotted to the plaintiffs after partition, and/or any other relief to which the plaintiffs are found entitled under the facts and circumstances of the case, may kindly also be awarded and justice be done.” This suit was contested and one of the contentions of the petitioner-defendant was that the suit had not been properly valued for the purposes of court-fee and jurisdiction. Issues were framed and Issue No.13 reads as follows:- “13. Whether the suit is not valued properly for the purposes of court-fee and jurisdiction? OPD- 1 to 4. “ It would be pertinent to mention that the onus to prove this issue was placed on the defendants 1 to 4. When these issues were framed, the court did not decide that it was going to treat Issue No.13 as preliminary issue and in view of the judgment of the Full Bench of this Court rendered Prithvi Raj Jhinta & Anr vs. Gopal Singh & Anr, AIR 2007 Himachal Pradesh 11, the Court could not have treated the said issue as preliminary issue. This position of law is so clearly set out in the aforesaid judgment that there can be no dispute with regard to this. However, in the present case, the petitioner/defendant cannot be permitted to raise this objection. The issues in the 3 case were framed on 30.4.2002. Thereafter some application under order 22 rule 3 CPC was filed which took some time and another application for amendment of plaint was filed which was decided much later and finally the case was listed for the plaintiff’s evidence. On 27.11.2006, the learned counsel for the defendant, that is, the present petitioner before this Court had made a prayer to the trial Court that issue No.13 be treated as preliminary issue. This prayer was made on behalf of the petitioner since no objection was raised by the other side the learned trial court decided to treat this issue as a preliminary issue. At that time, this Court had not even delivered its judgment in Prithvi Raj Jhingta’s case. Therefore, though the procedure followed by the trial Court may be incorrect, in view of the fact that it was the petitioner/defendant who had requested the trial Court to decide the preliminary issue first, it does not lie in the mouth of the petitioner/defendant at this stage to urge that the order is illegal on this count. The other contention raised on behalf of the petitioner/defendant is that the suit of the plaintiff was for declaration and not a suit for partition and therefore, fell within the meaning of Section 7(iv) (c ) read with proviso 4 thereto and the court-fee should have been fixed on the suit on the basis of the market value of the land. The trial court held that the suit is basically a suit for partition and to enforce a right of the plaintiff in the joint family property and falls within the ambit of Section 7(iv)(b) and, therefore, the suit has been properly valued for the purposes of court-fee and jurisdiction. From the perusal of the prayer clause quoted hereinabove, it is absolutely clear that the plaintiffs had only sought declaration to the effect that they are having ½ share in the entire property and therefore, the joint property is liable to be partitioned and the same may be partitioned by metes and bounds. It clear that the declaration sought for was in respect of joint family property and the only consequential relief prayed was that after declaration of the share of the plaintiff, the property be partitioned by metes and bounds. The learned trial Court did not commit any error in holding that the plaint was correctly valued in terms of Section 7(iv)(b) of the HP Court Fees Act, 1968 and, therefore, I find no merit in this petition which is accordingly dismissed. 5 The parties through their counsel are directed to appear before the trial Court on 26.6.2008. The Registry is directed to send back the record of the trial Court so as to reach there well before the date fixed. Keeping in view the fact that the suit was filed in the year 1999, the learned trial Court shall make an endeavour to decide the suit as early as possible and not later than 31st May, 2009. The trial Court is directed to ensure that not more than three opportunities shall be given to each of the parties to lead their evidence . If necessary, the court may take up the matter on day to day basis. May 21, 2008. ( Deepak Gupta ),J. s.