JUDGMENT
A. Pasayat, J.
1. The conclusion of the learned Munsif, Kodala that he had no pecuniary jurisdiction to try Title Suit No. 58 of’ 1978 and consequential direction to the petitioners, the plaintiffs to take return of the plaint was assailed in appeal before the learned Subordi- nate Judge, Aska, who affirmed it. The correctness of the conclusion is questioned in this case.
2. A brief reference to the factual aspects is necessary. The suit land measuring A G. A-4 cents was claimed by the plaintiffs as rayati to be, as recorded in the settlement records as per 1951 settlement. They claimed that the viilagers of Manisila have been using some portion thereof as burial ground, a portion as Gochar, and balance as place of worship by installing one village Goddess named Budhima Thakurani. On 1-4 1973, the defendants-opposite parties attempted to cultivate the suit land. The suit was filed to restrain the defendants. It was also claimed in the suit that the Government has no manner of authority to start proceeding under the provisions of the Orissa Prevention of Land Encroachment Act, 1972, in regard to possession of the plaintiffs over the suit land. The prayer in essence was to declare the suit land as a communal one, and to restrain defendants 1 to 17 from interfering with possession of the plaintiffs over the suit land, and consequently to cancel the patta granted in favour of defendant No. 1 (opp. party No. 1 in this proceeding). The stand of the defendants was that the suit land originally belonged to Athgarh estate and there is no semblance of truth in the assertion that the suit land was being used as burial ground and the Bijesthali of village deity. Defendants 2 to 7 claimed to be bona fide purchasers of the suit land from defendant No. 1, and asserted that the land had been settled in favour of defendant No. 1 in 1976 to the knowledge of everybody by the proper authority. A definite stand W3s taken that the valuation of the suit land was much higher than the value fixed by the plaintiffs in the olaint and accordingly, the suit was under- valued. Six issues were framed by the learned Munisif, for adjudication. One of the issues was as follows :
“Whether the suit is properly valued and has this Court pecu- niary jurisdiction to try the suit 1”
An application under Order 14, Rule 2 of the Code of Civil Procedure, 1903 (in short, ‘CPC’) was filed to try the said issue as a preliminary issue. The learned Munsif heard both sides. He observed that the plaintiff No. t admitted that the valuation of the suit land is more than Rs. 1 lakh. Accordingly, it was concluded that the Court had no pecuniary jurisdiction to try the suit, and therefore, the plaintiffs were directed to take return of the plaint for presentation before the proper Court. As the plaintiffs did not file any application under Sub- rule (2) of Rule 10 of Order 7, the learned Munsif directed the plaintiffs to take return of the plaint for presenting the same in the Court of proper jurisdiction, by order dated 28-5-1983. On that date it was observed that counter affidavit was filed by the plaintiffs to the petition filed by the defendants purportedly to be one under Order 14, Rule 2. Sub-rule (2-A) CPC. The order of the learned Munsif was assailed in appeal before the learned Subordinate Judge,Aska,who treated the order of the learned Munsif to be one under Order 7, Rule 10 CPC. On a reference to the evidence of plaintiff No. 1, who was examined as PtV 1 by the parties, it was observed that the conclusion of the learned Munsif were proper. He noticed that in the written statement, defendants had indicated absence of pecuniary jurisdiction of the Court by contending that the valuation of the suit land was tar above than the valuation indicated by the plaintiffs. It was observed that though the valuation of the suit is to be put by the plaintiff, such valuation is covered Under Section 7(iv)(c) of the Court-fees Act, 1870 (in short, the ‘Act’) such valuation would not be arbitrary, capricious or very low. Where the valuation is grossly disproportionate in comparison with the market value, the Court has to fix the proper valuation, and if it is seen that the Court lacks jurisdiction it shall return the plaint to the plaintiff to file before the proper Court in terms of Order 7. Rule 10 CPC.
3. Two points are urged in support of the revision application, namely, (i) the learned Munsif should not have adjudicated the question of valuation as a preliminary issue as Order 14,Rule 2 has no application to such a case; and (ii) there has been mis-interpretation of the evidence of PW 1, and therefore, the conclusions are vitiated. The plaintiff has wide discretion to put valuation Under Section 7(iv)(c) of the Act, and that discretion should not be lightly interfered with.
4. I shall first deal with the question whether the question relating to valuation can be adjudicated as a preliminary issue. Order 1 – Rule 2, CPC, has now been substituted by Act 104 of 1976. The substituted,. Rule 2 after the aforesaid amendment which is operative from 1-2- 1977 reads as follows :
“Order 14. Settlement of issues and determination of suit on issues of law or on issues agreed upon-
Rule. 1. xx xx xx
Rule. 2. Court to pronounce judgment on all issues-
(1) Notwithstan-r.ng that a case may be disposed o1 on a preliminary issue, the Court shall subject ta. the provisions oi 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 o1 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.”
The rule consists of two parts. First part is contained in Sub-rule (1) which lays down that notwithstanding that a case may be disposed ot on a preliminary issue, the Court shall, subject to the provisions of Sub- rule (2) pronounce judgment on all issues. Sub-rule (2) deals with a case 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. In a case answering the above pre-condition the Court is authorised to try that issue first if it 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. A restriction is put on the Court in the sense that though it might be disposing of the suit or any part thereof on an issue of law, the same shall not be tried as a preliminary issue unless it involves the jurisdiction of the Court or bar to the maintainability of the suit created by any law in force, It is not permissible for a Court to take up an issue of law as a preliminary issue, unless it comes within the parameter indicated above. Issues are necessarily of two types, i. e., (i) issue of fact, and (ii) issue of law. Sub-rule (3) of Rule 1 provides that each’ material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. In appealable cases piecemeal trial by taking up some of the. issues preliminarily should be avoided as it may lead to protracted litigation and repeated appeals in the same suit, the exception being where the issues of law going to the root of the case arise which are capable of being decided without evidence, in that event the Court shall be bound to try those issues first. Discretion vested in the Court under the rule has to be exercised depending upon the facts of each case. An issue of fact or mixed issue of fact and law cannot be decided as a preliminary issue. Where an issue of jurisdiction is a question of fact or is a mixed question of fact and law, it cannot be decided as a preliminary issue but it should be decided on merits along with other issues.
5. Any question touching upon jurisdiction of the Court does not automatically become an issue of law, as this question invariably depends upon factual aspects. If no investigation is necessary and it is not necessary to go into controversial, facts, the question relating to jurisdiction may be preliminarily decided as an issue of law only under the amended provisions.
The question is whether the disclosure of valuation in terms of the. Act is in absolute discretion or option of the plaintiff, or it can be objected to by the defendant and adjudicated upon by the Court, and if so in what cases.. Under CPC “plain; is liable to be rejected under Order 7, Rule 11 if it is undervalued. How to reconcile the two provisions, the one leaving it to absolute discretion of plaintiff to- value the suit as he considers proper, and the other to reject a plaint it it is undervalued. In a suit for declaration with consequential relief failing Under Section 7(iv)(c) of the Act, the plaintiff is free to make his own estimation of the reliefs sought in the plaint, and such valuation both for the purposes of court-tee and jurisdiction has to be ordinarily accepted. For this, it is necessary to examine the scheme disclosed in the CPC relating to filing of suit. Section 15 thereof provides that any suit snail be instituted in the Court of lowest grade competent to try it. What is a Court of lowest grade and for what nature of suit, has been determined and regulated by the State enactments. Competency rete to jurisdiction, territorial or pecuniary of limited or unlimited limits, in Courts of limited pecuniary jurisdiction, valuation assumes great importance. A plaintiff may over or undervalue the suit for purposes of avoiding a Court of a particular grade. In the former. the plaint may be returned under Order 7, Rule 10 for presentation in proper Court, dux in latter it is liable to be rejecte J. Since undervaluation goes to the root Of maintainability of the suit a defendant is entitled to raise objection irrespective of the nature of the suit. In Abdul Hamid Shamai v. Abdul Majid and Ors. : AIR 1988 SC 1150, while upholding the right of the plaintiff to value the suit for accounting according to his own estimate, the apex Court held that he has not been given the absolute right or option to place any valuation whatever in such relief. That of course was a case of limited pecuniary jurisdiction in which the defendant could object as arbitrary under evaluation and in that event it can result in rejection of the plaint. Such right may be denied in suits of unlimited jurisdiction. A defendant is not entitled to use it as a weapon to non-suit the plaintiff. Then by very nature of the suit a defendant is normally interested in delaying its adjudication which at times may frustrate the very purpose of the suit. In Tara Devi v. Sri Thakur Radha Krishna Maharaj : AIR 1937 SC 2085, the apex Court observed that it is now well settled that in a suit for declaration with consequential relief falling Under Section 7(iv)(c) of the Act, the plaintiff is free to make his own estimation of the relief sought in the. plaint, and such valuation both for the purpose of court-fee and jurisdiction has to be ordinarily accepted. It is only in cases where it appears to the Court on a consideration of the facts and circumstances of the case that the valuation is arbitrary, unreasonable and the plaint has been demonstratively undervalued, the Court can examine the valuation and can revise the same. But the defendant has no right to raise such objection nor the Court should delve into the matter after filing of written statement on evidence. The proper courses to be adopted in such cases are as follows .
(i) Where the question of court-fee is linked with jurisdiction a defendant has a right to raise objection, and the Court should decide it at the threshold.
(ii) But in those cases where the suit is filed in Court of unli- mited jurisdiction the valuation disclosed by the plaintiff of payment of amount of court-fee on relief claimed in plaint or memorandum of appeal should be taken as correct.
(iii) This does not preclude the Court oven in suits filed in Courts of unlimited jurisdiction from examining if the valuation, on averments in plant, is arbitrary.
These aspects were highlighted by the apex Court in Sujir Keshav Nayak v. Sujir Ganesh Nayak : AIR 1992 SC 1526.
6. Coming to the facts of the case, I find that there has been misinterpretation of the evidence. Nowhere there has been admission by the plaintiffs that the valuation of the suit land was more than rupees one lakh. The learned Subordinate Judge has referred to the evidence of plaintiff No. 1. The portion on which great emphasis has been laid reads as follows:
“The cost of the land per Bharan in our village is Rs. 5000/- to Rs. 6000/-. Five years back the cost of the land in our village per Bharan was about Rs. 4000/-.”
The Courts below have observed that reference is to the suit land. According to the learned Subordinate Judge, the use of the expression ‘the land’ twice obviously refers to the suit laid. The conclusion is clearly erroneous. The same was read out of context. it reference was intended to be made to the suit land, there was no necessity to refer to the land in the village. There was no material regarding costs of the suit land. On the contrary answer is relating to cost of land in the village. The Courts below were not justified in holding that there was any admission relating to valuation of the suit land, and consequentially leading to under evaluation of the suit. In that view of the matter, the orders of the Courts below cannot be sustained. The order directing return of the plaint is vacated. The issue No. 2 relating to valuation and jurisdiction is to be adjudicated along with other issues in the suit. Any view expressed by me shall not be construed to be in relation to the merits.
The civil revision is allowed. No costs.