JUDGMENT

M.M. DAS, J. : The petitioner is the defendant No.2 in C.S. No.98 of 2003 pending before the learned Civil Judge (Junior Division), Cuttack. In the present writ petition, the petitioner has assailed the order dated 22.1.2004 passed by the Trial Court vide Annexure-2 whereby the application filed by the petitioner under Order 7 Rule 11(b) of the Code of Civil Procedure has been rejected.

2.Facts reveal that the opposite party No.1 as plaintiff filed the aforesaid suit in the Court of learned Civil Judge (Junior Division), First Court, Cuttack claiming the following reliefs :

1. Let a decree be passed declaring that the purported cancellation of the shop room 127 at lower ground floor of Netaji Subhas Bose Shopping Arcade made in favour of the plaintiff, as communicated by the defendants in their letter dt. 24.4.2003 and 5.5.2003 is illegal and the same has not sanctioned in law and the plaintiff is entitled to be assigned shop No.127.

2. Let a decree for permanent injunction be passed against the defendant or any of its Officer/authorized representatives restraining them from allotting the shop room in question being shop room No.127 in lower ground floor of Block-A, having a super built up area of 332 sft in favour of any other prospective purchaser/allotted.

3. Let a decree for mandatory injunction be passed against the defendants/any of its officer/representatives directing them to receive the balance amount from the plaintiff either in one installment or in phased manner, as may be decided by this Hon’ble Court.

3.It is the plaintiff’s case that the defendants were constructing a market complex in the land of the old jail complex, Darghabazar, Cuttack, the details of which has been given in the schedule of land attached to the plaint. The plaintiff was allotted with Shop Room No.127 in Block-A in the ground floor of the complex having a super-built up area of 320 Sq.ft., the cost of which was Rs.4,66,900/-, but the defendants granted him discount to the tune of Rs.9338/- and thus, the total consideration amount was fixed at Rs.4,57,562/-. The plaintiff made payment of Rs.18,470/- on 25.4.2002, Rs.54,937/- on 29.5.2002, Rs.54,907/- on 9.9.2002 and Rs.54,740/- on 10.10.2002 and thus, in sum total, the plaintiff has paid an amount of Rs.1,83,074/- to the defendants. Since the plaintiff could not pay certain installments, the defendants by their letters dated 24.4.2003 and 5.5.2003 cancelled the order of allotment of Shop Room No.127 in favour of the plaintiff, which are sought to be declared in the suit as illegal and without sanction of law. The petitioner-defendant No.2 on receipt of the summons appeared in the suit and filed an application under Order 7 Rule 11(b) of the Code of Civil Procedure, inter alia, stating that the plaintiff having filed the suit for declaration with consequential relief of permanent injunction and also mandatory injunction, the suit is governed under Section 7 (iv(c) of the Courts Fees Act. The plaintiff in paragraph-10 of the plaint having stated that valuation of the shop room is Rs. 4,57,562/- and having stated about his payment of Rs.1,83,074/- to the defendants could not have valued the suit arbitrarily at Rs.1500/- only. The suit, therefore, having been grossly undervalued, the plaintiff should be directed to correct the valuation of the suit to Rs.4,57,562/- within a fixed period failing which the plaint should be rejected.

4.The trial Court by the impugned order came to the conclusion that the suit is relating to the order of cancellation of allotment of the suit shop room. Admittedly, till date, no title over the suit property has passed to the plaintiff through any instrument nor any such instrument is under challenge. The plaintiff has not acquired any title over the suit premises in order to establish his possession or ownership and the controversial issue between the parties is a dispute relating to allotment of the suit shop room. Therefore, the plaintiff is not to be governed as