Honble RATHORE, J.– This writ petition is directed against the order dated 22.9.2004 by which, the learned Additional District & Sessions Judge No. 3, Jaipur City, Jaipur in Suit No. 126/2003 titled as Vilam Chand vs. Mohkam Chand & Ors. allowed the application dated 15.3.2004 moved under Sections 11, 18, 24, 29 & 38 of the Rajasthan Court Fees and Suit Valuation Act, 1961 (for short `the Act) read with Order 7 Rule 11 of the Code of Civil Procedure and the plaintiff was directed to deposit Rs. 7,00,000/- lakhs and the issue for determination of the actual suit value was left open with the observation that it shall be decided after considering the evidence adduced on behalf of the parties and in case additional court fees required to be deposited, same shall be requisitioned from the plaintiffs- respondents.

(2). The impugned order dated 22.9.2004 was challenged by the petitioners on the ground that the plaintiff-respondent No.2 before the learned Additional Civil Judge (Sr. Div.) No. 3, Jaipur City, Jaipur in the year 1997 for cancellation of sale deed and possession of the property alleging that the sale deed was executed by fraud and he has executed mortgage deed and, therefore, the sale deed be declared as null and void and the defendants be directed to hand-over the possession. The suit was valued for Rs. 48,449/- and the respondent No. 2 paid court fee of Rs. 2490/- The application under Order 7 Rule 11 of the Code of Civil Procedure read with Section 11, 24 and 29 of the Act was filed by the defendants-petitioners before the Civil Court and the Court vide its order dated 16.8.2002 observed that Issue No. 7 with regard to the Court fee would be decided as preliminary issue before going into the merits of the case.

(3). The learned court after hearing the arguments on the preliminary issue held that the valuation of the suit premises is not less than Rs. 65 lakhs and, therefore, it is not within the courts jurisdiction to hear the suit and, therefore, the plaintiff was directed to file suit before the proper court after filing proper court fee on the suit value as assessed by the learned Court i.e. Rs. 65 lakhs.

(4). The appeal was filed by the respondent No. 2 against the order dated 22.1.2003 passed by the learned Additional Civil Judge No. 3, Jaipur City, Jaipur before the learned District Judge. The appellant court has held that the trial Court should not have decided the valuation, but should have returned the suit because the valuation of the suit was admittedly more than Rs. 50,000/-. Therefore, the appeal was partly allowed and the learned Additional District & Sessions Judge No. 3, Jaipur City, Jaipur has held that the valuation of the suit was more than Rs. 50,000/- but set-aside the valuation of the suit determined by the trial Court and the plaintiff was allowed to submit the plaint before the competent court i.e. District Judge and the same was filed before the learned District Judge. The learned District Judge transferred the suit to the Court of the learned Additional District & Sessions Judge, Jaipur City, Jaipur.

(5). The impugned order dated 22.9.2004 passed by the learned Additional District & Sessions Judge No. 3, Jaipur City, Jaipur is challenged by the petitioner by way of filing of this writ petition on the ground that the trial court has failed to consider that as per the provisions of the Act, it was mandatory duty of the Court to have decided the proper court fee before going into the merits of the case and thus, the trial Court has failed to exercise its jurisdiction thereafter in accordance with law as the trial Court ought to have decided the issue of the valuation on the basis of the valuation report and D.L.C. rates meant for registration of the property and directed the plaintiff to deposit proper Court fee.

(6). Learned counsel for the petitioner referred Section 11 of the Act which reads as under:

``11. Decision as to proper fee- (1) In every suit instituted in any Court, the Court shall, befor

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