The main legal point established is that the question of court fee linked with jurisdiction can be decided as a preliminary issue, as established in the judgments of Sujir Keshav Nayak v. Sujir Ganesh Nayak and Dr. Om Prakash Rawal v. Mr. Justice Amrit Lal Bahri.

By filing this petition under Section 227 of the Constitution of India the petitioner has called in question the order passed by the 9th Civil Judge Class-II, Gwalior in Civil Suit No. 16A/2013 dated 02.09.2013. By this Order, the application of petitioner/defendant preferred under Order 15 Rule 3, C.P.C is rejected.

2. Brief facts necessary for adjudication of this matter are as under:

(i) Plaintiff filed the suit for partition and permanent injunction. An application under order 7, Rule 11, C.P.C was filed by the petitioner/defendant on the ground that the valuation of the suit is not proper. The said application was rejected by the Court below on 15.01.2013. The Court below opined that this question of valuation is a mixed question of facts and law and therefore, it cannot be decided without recording evidence.

(ii) Then the Court below on 01.08.2013 framed six issues. Issue No.5 was framed regarding valuation of the suit. The petitioner thereafter filed application under Order 15 Rule 3, C.P.C praying for deciding issue No. 5 as a preliminary issue. This application was opposed by the defendant/respondent. The Court below by impugned order rejected the same. The Court below opined that the question of valuation is mixed question of facts and law, it cannot be decided as preliminary issue.

3. Criticizing this order Shri Sanjay Kumar Sharma, Advocate for the petitioner, submits that question of proper valuation has a nexus with pecuniary jurisdiction of Court. The Court, therefore, must decide this issue has preliminary issue. He relied on certain judgments.

4. Prayer is opposed by Shri Purushottam Rai. He submits that if said issue is decided as preliminary issue, it will delay the proceedings and it will not be in the interest of justice.

5. I have heard learned counsel for the parties and perused the record.

6. In the considered opinion of this Court, the question involved in this matter is no more res ingetra. The Apex Court in AIR 1992 SC 1526 (Sujir Keshav Nayak v. Sujir Ganesh Nayak) opined that where the question of court fee is linked with jurisdiction, a Defendant has a right to raise objection and the court should decide it as a preliminary issue ( para 5). The said judgment is followed by the Himachal Pradesh High Court in AIR 1994 HP 27 (Dr. Om Prakash Rawal v. Mr. Justice Amrit lal Bahri).

7. In para 5 of application (Annexure P/5) the petitioner has specifically pleaded that the question of court fee has a direct relation with the pecuniary jurisdiction of the Court and therefore, it should be decided as preliminary issue. The case of the present petitioner is squarely covered by the judgment of Supreme Court in Sujir Keshav Nayak (supra). The Court below, in the considered opinion of this Court, has erred in rejecting the application for deciding the issue No.5 as a preliminary issue. Reason assigned by the Court below is unsustainable. Even if the issue is mixed question of facts and law, it can very well be decided as a preliminary issue.

8. Resultantly, following the judgment of Sujir Keshav Nayak (supra), the impugned order dated 02.09.2013 is set aside. Application under Order 15, Rule 3 is allowed. The Court below is directed to decide the issue No. 5 as preliminary issue in accordance with law.

9. Petition is allowed to the extent indicated above.

Petition allowed.