ORDER
Balakrishna, J.
1. This Civil Revision Petition is directed against the order dated 17-9-1988 passed on I.A-VII by the Principal Munsiff & I Additional J.M.F.C., Ranebennur, in O.S.No. 133 of 1981.
2. The essential facts may be stated thus:
The suit was filed by respondent-1 for the following reliefs:
(a) Plaintiff prays that it be declared that the plaintiff is lawfully entitled to run and manage and to do all other necessary administrative and supervisory powers over the staff and over the funds and to control over the asset of the suit College (and to be in possession of all the properties, movable and immovable pertaining to the suit College);
(b) The defendants or any one on their behalf be permanently restrained from interfering with the administration and the management and other activities of the suit College run by the plaintiff;
(c) It be declared that all appointments of the staff or assignment of jobs etc., done by the defendants any liability if incurred by the defendants on behalf of the suit College after 3-4-1981 independently, as null and void, and the same are not binding on the plaintiff;
(d) It is prayed for an order of prohibitory injunction against defendants not to indulge themselves in the activities parallel or contrary to the suit College, using the similar name in Ranebennur City;
(e) Defendants be ordered to pay the costs of this suit to the plaintiff, and the any other relief which the Court deems fit.”
3. The petitioner, who is defendant-1, raised several objections in his written statement out of which certain objections’ are relevant for the purpose of this case. In para-6 of the written statement, defendant-1 contended that the Court has no jurisdiction to decide the suit and that it was alleged by the plaintiff in paras~10 and 11 of the plaint that it had already invested more than Rs. 1,00,000/- and that the plaintiff’s prayer was for declaration of the assets etc., and hence the Court had no pecuniary jurisdiction to entertain the suit. In the succeeding para of the written statement, defendant-1 contended that the plaintiff had alleged that it invested Rs. 1,00,000/- on the site and that it had claimed a declaration and, therefore, the plaintiff is bound to pay Court fee under Section 24(a) & (b) of the Karnataka Court Fees and Suits Valuation Act, 1958 (hereinafter referred to as ‘the Act’), These are the only averments to be found in the written statement filed by defendant-1.
4. It is necessary to mention at this stage, an order passed by the trial Court on a check slip which was issued by the Court Fee Examiner requesting the Court to collect the deficit Court-fee of Rs. 50/- from the plaintiff. It is obvious that the Court-fee Examiner had pointed out a deficiency in the course of the inspection of the records of the Court in order to examine the correctness of representations made to and orders passed by the Court on question relating to valuation of subject matter and sufficiency of fee in respect of proceedings in that Court under the provisions of Section 17(1) of the Act. Proceeding to pass an order on the request made by the Court-fee Examiner, a detailed order, was passed by the trial Court as required under Section 17(2) of the Act on 5-8-1986. By that time, the issues had not yet been framed by the Court. It is admitted that the issues were framed on 9-8-1987. In the order passed by the trial Court it was held that there is no merit in the objection raised by the Court-Fee Examiner and it was not justifiable to recover the alleged deficit Court fee of Rs. 50/-.
5. After the issues were framed and evidence was let in partly, by the examination of the plaintiff on 9-10-1987 and the case being adjourned to 7-11-1987, the petitioner filed I.A-VII insisting upon the disposal of issue Nos. 3 and 4 which, according to the petitioner, are the preliminary issues which the trial Court ought to have disposed of in accordance with Order 14 Rule 2 of the C.P.C. Again after hearing the learned Counsel for both the parties, the trial Court rejected l.A-VII on merits. The trial Court based its order on the grounds that the Court Fee Examiner had raised objection regarding deficit Court fee and subsequently the Court had passed an order on 5-8-1986 overruling the objection of the Court-fee Examiner and had held that the Court fee paid by the plaintiff was sufficient and further that the said order became final since the defendants did not appeal against the same. The trial Court also reasoned that it cannot sit in Judgment over the order passed by its predecessor and, therefore, issue No. 3 would not survive for consideration and, as regards issue No. 4, the reason assigned by the trial Court in disposing of I.A-VII was that the prayer of the plaintiff was not for declaration of ownership and for possession of the assets of the Institution, but the prayer was for a declaration of the right to management of the Institution and, therefore, the Court did have pecuniary jurisdiction.
6. The short point for consideration is whether the impugned order suffers from legal infirmity and whether issue Nos. 3 and 4 should have been treated as preliminary issues and disposed of as contemplated under Order 14 Rule 2 of the C.P.C.
7. It was strongly contended by the learned Counsel for the petitioner Sri Subhash B. Adi that once the 1st defendant has raised the question of jurisdiction at the earlier stage of the proceedings and an issue had been framed in that behalf, the Court was duty-bound to treat it as a preliminary issue and try the same before the commencement of evidence in accordance with the requirements of Order 14 Rule 2 of the C.P.C.
8. Order 14 Rule 2 of the C.P.C. reads as follows:
(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 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.”
9. At this stage, it may be observed that the question of complying with the requirements of Order 14 Rule 2 of the C.P.C. would have become relevant if the state of affairs did not exist resulting from the objection raised by the Court-fee Examiner with the sequel of an order having been passed by the trial Court on the objections so raised by the Court fee Examiner on 5-8-1986 on merits, holding that the Court-fee paid by the plaintiff was sufficient and the question of recovering the alleged deficit Court-fee of Rs. 50/- did not arise. As rightly contended by the learned Counsel appearing for respondent-1, the trial Court had already exercised its power under Section 17(2) of the Act and had passed a considered order reviewing its valuation of subject-matter and sufficiency of Court-fee made earlier.
10. According to Section 17(1) of the Act, it is open to the Court-fee Examiner to inspect the records of the subordinate Courts in order to examine the correctness of representations made to, and orders passed by Courts, on questions relating to valuation of subject-matter and sufficiency of fee in respect of proceedings in such Courts. According to Section 17(2) of the Act, on an objection being raised by the Court-fee Examiner in the Report submitted by him In relation to any suit or appeal or proceeding pending in a Court, the objection so raised shall be heard and decided by such Court and it shall be lawful for the Court to review an earlier decision given by it on the same question. This is exactly what the trial Court has done on 5-8-1986. The petitioner has contended that notwithstanding the order passed on 5-8-1986, it is statutorily mandatory for the Court to comply with the requirements of Order 14 Rule 2 of the C.P.C. and when there is non-compliance and rejection of the application of the petitioner for disposal of the preliminary issues, the impugned order would be unsustainable. I must observe that such a contention would not stand legal scrutiny. If it is accepted, then the resultant position would be the review of a review made by the Court under Section 17(2) of the Act. This, I am afraid, is legally impermissible. In this behalf, the learned Counsel for respondent-1 invited my attention to a ruling of this Court in B.V.V. SANGH v. JAGANNATH 1969(2) KLJ 122, wherein it was held:
“Once a plaint valuation has been affirmed or corrected after a hearing pursuant to a check slip issued by the Court-fee examiner under Section 17, the decision under Section 17 is not open to further examination in that Court. The power of the Court to review upon the defendant exercising his liberty of raising the question of Court-fee is a power to review the decision under Section 11(1).”
I am in respectful agreement with the view taken in the said decision.
11. However, it was vehemently contended by the learned Counsel for the petitioner that that is not the only point to be considered by this Court on the question of jurisdiction because, according to the learned Counsel, there is another point which needs examination and that Is the nature of the declaratory relief sought by respondent-1 before the trial Court which warranted payment of Court-fee under Section 24(a) and (b) of the Act but, on this point, there was no application of mind in the decision rendered by the trial Court in its order dated 5-8-1986. I do not think that this contention has any merit in it because what the trial Court did while passing the order on 5-8-1986 is the review of its earlier decision relating to not only valuation of subject matter of the suit, but also the sufficiency of Court-fee. Even otherwise, it has to be mentioned that a plain reading of the prayer in the plaint clearly discloses the fact that what the plaintiff sought was only a declaration of the right to management of the Institution and not a decree for declaration of title and possession. This observation I have to make because the petitioner had vehemently insisted before the trial Court that it was a suit for declaration of title in regard to the assets of the Institution and, therefore, the Court-fee payable was under Section 24(a) and (b) of the Act. Perhaps the petitioner laboured under a misconception while interpreting the relief sought in the plaint by the plaintiff.
12. Assuming for a moment that the plaintiff had mentioned that it had invested over a lakh of rupees for the purpose of running and managing the Institution and that certain questions of fact ought to have been gone into beyond what the trial-Court had done on 5-8-1986, the position would have been that the preliminary issue would part take the character of an issue of fact and not issue of law and, at best, a mixed question of law and fact. Unless the preliminary issue happened to be on an exclusive question of law, it would not attract the provisions of Order 14 Rule 2 of the C.P.C. On this question, there is no divergence in judicial opinion.
13. Facts disclose that I.A-VII was filed by the petitioner subsequent to the examination in part of the plaintiff during the course of the trial and that too with the marking of an exhibit and subsequently adjourned to a date for further evidence and at this stage I.A-VII came to be filed for the purpose of requesting the Court to try the preliminary issues and to dispose them of on merits. I am afraid that it was too late in the day for the petitioner to approach the Court for the purpose of implementing the provisions of Order 14 Rule 8 of the C.P.C., if the provisions did apply.
14. The learned Counsel for the petitioner relied on a decision of this Court in UMARABBA v. PITHUNNI 1984(2) KLJ 97. It is necessary to set out briefly the points considered in the said case so as to examine the applicability of the legal principle to the instant case. The petitioner therein being the defendant before the trial-Court had filed a written statement in the suit urging that the subject-matter of the suit had not been properly valued for the purpose of jurisdiction and Court-fee and thereafter an issue was cast in that behalf. The petitioner filed I.A-VII asking the Court to hear the said issue as a preliminary issue, but the request was rejected by the Court. In the Civil Revision Petition preferred against the said order of the trial Court, the petitioner maintained that the valuation of the subject matter in regard to the jurisdiction had not been properly done and that the Court-fee paid was insufficient and it was, therefore, incumbent on the trial-Court to hear all questions arising on such pleas and render decision before evidence is recorded affecting the defendant on the merits of the claim.
15. It is in the above context that this Court held:
“When the special statute has made it incumbent on the trial Court to decide such a question before recording evidence affecting the claim of the petitioner – defendant on merits, the trial Court has got to follow the procedure. It is not permissible to the trial Court to give a go-by to this mandate in the special statute. Therefore, the proviso to Section 115(1) of C.P.C. would not be a bar and this Court has the power to reverse the order in exercise of its revisional powers under Section 115(1) C.P.C.”
16. The case relied on by the learned Counsel is distinguishable in so far as the fact pattern is concerned. The existence of a relevant and an additional factor in the instant case which is conspicuous by its absence in the decision relied upon by the learned Counsel for the petitioner is that there is an order of review passed by the trial-Court in the case in hand consequent upon an objection raised in a report made by the Court-fee Examiner. This factor is not at all discernible in the case relied upon by the learned Counsel for the petitioner and the Court in that case was not concerned with the question arising therefrom. In the present case, what is relevant is the finality of the order passed by the trial-Court on a review of its own order under the provisions of Section 17 of the Act. What was considered in the cited decision is the provision of Section 11(2) of the Act. In addition, what the Court considered was the exercise of power under Section 151(1) of the C.P.C. proviso where the mandate under Section 11(2) of the Act is not complied with by the trial-Court. I, therefore, hold that the decision relied upon by the learned Counsel for the petitioner would not apply to the facts of this case.
17. It is no doubt true that under the provisions of the Civil Procedure Code the defendant is entitled to raise the plea of jurisdiction and contend that the Court is bound to consider the challenge to the jurisdiction after casting a preliminary issue before proceeding with the trial on merits. It is equally true that the defendant has a right to point out to the Court when the preliminary issue is tried that the Court suffers from want of jurisdiction whether pecuniary or territorial. By disposing of the objection raised by the Court-fee Examiner by adopting the procedure prescribed under Section 17 of the Act, the Court would be discharging its duty and function only in regard to the objection raised by the Court-fee Examiner, but it certainly would not satisfy the legitimate demand of the defendant on record who has chosen to challenge the jurisdiction of the Court at the earliest opportunity whereafter the Court having framed an issue on the question of jurisdiction. The right of the Court-fee Examiner and the responsibility of the Court on the one hand and the rights of the defendant and the responsibility of the Court on the other hand cannot be equated. It would not be unreasonable to presume that what the Court-fee Examiner is seeking to protect is the interests of the exchequer to prevent loss of revenue due to non-recovery of the deficit Court-fee. At the same time, it is equally reasonable to presume that the right inherent in the defendant is to prevent the Court from exercising a jurisdiction not vested in it as otherwise a Judgment and decree rendered by a Court without jurisdiction would be a nullity at the end of a prolonged exercise in litigation. Presumption of law evident from the provisions of the Civil Procedure Code mandating that objection to jurisdiction ought to be raised at the earliest instance, manifests the purpose of obviating possible nullity of a Judgment and decree at the earliest stage before trial.
18. However, in the instant case, after the issues were cast by the trial-Court including the issue on the question of jurisdiction and Court-fee when the case was posted for recording evidence, the petitioner was at liberty to dissuade the Court from going ahead with the recording of evidence on the ensuing date of hearing by making an application, if necessary, instead of sailing with the Court without a demur when the Court proceeded to record the evidence of the plaintiff on the adjourned date of hearing besides marking of documents in evidence and then belatedly making an application which is I.A-VII on the further adjourned date of hearing for recording of further evidence, asking the Court to retrace Its steps and to try the question of jurisdiction and Court-fee as preliminary issues. The conduct of the petitioner amounted to not only a recall of his own objections to jurisdiction, but also a waiver of his right to challenge the jurisdiction of the Court. The limited question for the consideration of this Court is whether the rejection of I.A-VII filed by the petitioner by the trial-Court was in order and not whether the Court abdicated its duty to examine whether it had the necessary jurisdiction to try the suit. On a fair consideration of the material issue involved in this Civil Revision Petition. I am of the opinion that this petition cannot be sustained.
19. In the result, for the reasons stated above, the Civil Revision Petition is dismissed. No costs.