1. This case has come up in the list of orders cases for orders on the memo filed by the Advocate for the Petitioner stating that no notice of the civil revision petition is necessary to be issued to respondents 2 and 6, as they were absent and exparte in the trial Court. Memo is allowed at the risk of the petitioner. Notice to respondents 2 and 6 is dispensed with. The civil revision petition itself is heard for final disposal with the consent of the advocates.
2. The order dated 18-9-1980 passed by the Civil Judge, Mangalore on I.A No. 7 in O.S No. 50 of 1978 is challenged.
3. The undisputed facts are that the petitioner defendent filed his written statement in the said suit and raised a contention that the subject matter of the suit has not been properly valued for the purpose of jurisdiction and Court fee.
4. Issue No. 6 was cast in this behalf. Petitioner-defendant filed I.A No. 7, requesting the Court to hear issue No. 6 as a preliminary issue. The Civil Judge has, by the impugned order, rejected this request.
5. Sri P. Ganapathy Bhat, the learned Counsel for the petitioner, relied on Section 11(2) of the Karnataka Court Fees and Suits Valuation Act (herein-after referred to as the Act), and urged that it was incumbent on the trial Court to decide this question before recording evidence affecting the petitioner on the merits of his claim, and therefore, the impugned order is to be set aside as being not in accordance with the provisions of law.
6. The contention of the petitioner defendant in regard to the valuation is two fold. One is valuation of the subject matter in regard to the jurisdiction and the other is valuation of the same for payment of court fee. Section 11(2) of the Act deals with this aspect in the following manner:
“…………subject - matter of the suit has not been properly valued or that the fee paid is not sufficient. All questions arising on such pleas shall be heard and decided before evidence is recorded affecting such defendant on the merits of the claim……………..”
7. Reading of the above provision Shows that, on the face of it, it was incumbent on the trial Court to decide this issue before recording evidence affecting the petitioner on the merits of his claim. But proviso to Section 115(1) of C.P.C lays down that when an order is passed in the course of a suit, the High Court shall not vary or reverse the order unless the impugned order falls within the excepted categories enumerated in clauses (a) and (b) of the proviso. It is no doubt true that the impugned order has been passed in the course of the suit. But 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
8. In view of the foregoing reasons, I allow the Civil revision petition, set aside the impugned order and direct the trial Court to decide and dispose off issue No. 6 before proceeding to record evidence affecting the merits of the claim of the petitioner. No costs under the facts and circumstances of the case.
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