ORDER

This petition is directed against the impugned order dated

17.12.2021 passed in O.S.No.449/2018 by the Prl. Civil Judge & JMFC, Mangaluru, D.K., whereby issue Nos.4 and 6 regarding valuation of Court fee as well as maintainability of the suit as barred by resjudicata were treated as preliminary issues and answered in favour of the respondent – plaintiff.

2. Heard learned counsel for the petitioner and learned counsel for the respondent and perused the material on record.

3. The material on record discloses that the respondent –

plaintiff instituted the aforesaid suit for declaration, permanent injunction, possession and other reliefs in relation to the suit schedule immovable property. The suit having been contested by the petitioner – defendant, the trial Court framed the following issues:

“1. Whether the plaintiff proves that, Sale deed dated 14.09.2012 and Rectification Deed dated 12.04.2013 got executed by the defendant in pursuance of alleged GPA dated 16.02.2022, taking unfair advantage of the plaintiff’s helplessness situation and exercising undue influence, coercion on the plaintiff?

2. Whether the plaintiff entitled for vacant possession of ‘A’ schedule property from the defendant?

3. Whether the plaintiff is entitled for future mesne profit from the defendant at the rate of Rs. 10,000/- per month from the date of suit till actual delivery of ‘A’ schedule property to him?

4. Whether the suit of the plaintiff is properly valued for the purpose of court fee and jurisdiction?

5. Whether the defendant proves that the suit of plaintiff is barred by law of limitation?

6. Whether the suit of the plaintiff is maintainable?

7. What order or decree?”

As can be seen from the aforesaid issues, issue No.4 relates to valuation and sufficiency of Court fee while issue No.6 relates to maintainability of the suit has being barred by resjudicata in the light of the specific defence urged by the petitioner – defendant.

4. Before commencement of trial, the trial Court treated the aforesaid issue Nos.4 and 6 as preliminary issues and proceeded to pass the impugned order by answering the same in favour of the respondent – plaintiff and against the petitioner –

defendant, who is before this Court by way of the present petition.

5. A perusal of the plaint averments, in particular, the valuation column will indicate that the respondent – plaintiff has valued the suit at Rs.37,500/- which is well within the pecuniary jurisdiction of the trial Court. Under these circumstances, in the light of the judgment of the Hon'ble Full Bench of this Court in the case of Venkatesh R. Desai Vs. Smt. Pushpa Hosamani & others – ILR 2018 KAR 5095, I am of the considered opinion that the trial Court committed an error in treating issue No.4 pertaining to valuation of Court fee as preliminary issue and rendering a finding in this regard and consequently, the impugned order deserves to be set aside.

6. Insofar as the finding recording by the trial Court on issue No.6 relating to maintainability of the suit as being barred by resjudicata is concerned, the material on record clearly indicates that issue of resjudicata as contended by the petitioner gives rise to mixed question of fact and law, which would also necessarily have to be decided after a full-fledged trial and the said issue would also have to be adjudicated along with other issues involved in the suit and not by way of an preliminary issue. Under these circumstances, the impugned order insofar as it relates to treating issue No.6 as preliminary issue and answering the same in favour of the respondent – plaintiff also deserves to be set aside.

7. In the result, I pass the following:

ORDER (i) The petition is hereby allowed.

(ii) The impugned order dated 17.12.2021 passed in O.S.No.449/2018 by the Prl. Civil Judge & JMFC, Mangaluru, D.K., is hereby set aside.

(iii) Consequently, I.A.No.6 filed by the petitioner stands allowed.

(iv) The trial Court is directed to decide all issues including issue Nos.4 and 6 relating t