The petitioner in this revision petition is the plaintiff No.1 in O.S.No.2 of 2003 on the file of the Court of the III-Additional District Judge (FTC) Anantapur, filed for partition of the suit schedule properties claiming that the plaintiffs are entitled to 1/6th share each.

The 1st respondent herein is the defendant No.2 whereas the respondents 2 and 3 herein are the defendant 3 and 4 respectively in the suit. The 4th respondent herein is the plaintiff No.2. The defendant No.1 died during the pendency of the suit.

The defendants filed written statement denying the plea of the plaintiffs that the suit schedule properties were the joint family properties. While claiming that the 3rd defendant was the absolute owner of items 2 to 4 of Plaint-A schedule properties and the same were in her exclusive possession and enjoyment, it was further contended that the plaintiffs ought to have paid the court fee under Section 34(1) of the A.P. Court Fee and Suits Valuation Act,1956 (for short "the Act") in respect of the said items and the court fee of Rs.200/- paid under Section 34(2) of the Act was not sufficient. On the basis of the said pleadings, issues were settled by the Court below including a specific issue as to the correctness of the Court fee as Additional Issue No.3.

Thereafter while the trial was in progress, the 2nd defendant filed I.A.No.1115 of 2007 with a prayer to try the Additional Issue No.3 relating to the correctness of court fee paid as a preliminary issue. Though the 1st plaintiff filed a counter and opposed, the said petition was allowed by the Court below by order dated.09-09-2008 holding that there was a triable point regarding the controversy.

Aggrieved by the said order dated.09-09-2008 the present Civil Revision Petition is filed by the plaintiff No.1. I have heard the learned counsel for both the parties and perused the material on record.

Order XIV Rule 1 of CPC, provides that the issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other and that each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. As could be seen from Order XIV Rule.1 (5), at the first hearing of the suit the Court shall ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.

Order XIV Rule 2 further provides that the judgment shall be pronounced by the Court on all issues except where the Court is of the opinion that the case or any part thereof may be disposed of on an issue of law only and in such event that issue may be tried first. For proper appreciation Order XIV Rule.2 may be extracted hereunder:-

Order XIV Rule.2:-

Court to pronounce judgment on all issues (1) Notwithstanding that a case may be disposed of on a preliminary issue, the court shall, subject to the provisions of sub-rule(2), pronounce judgment on all issues.

(2) Where such issues both of law and of fact arise in the same suit, and the court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to—

(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.

A plain reading of Rule 2 of Order XIV CPC shows that an issue may be tried as a preliminary issue only where it is an issue of law relating to jurisdiction of the Court or a bar to the suit created by any law for the time being in force and where the case or any part thereof may be disposed of on such issue.

In the case on hand, the issues were already settled as provided under Order XIV Rule 1. Adm