1. As common question of law and facts arise in the present Civil Revision Application as well as Appeal from Order and they arise out of common judgement and order passed by learned Appellate Court, the present Civil Revision Application as well as Appeal from Order are hereby disposed of together by this common judgement and order.
2. Facts leading to the present Civil Revision Application as well as Appeal from Order, in nutshell, are as under:
2.1 Respondent No.1 herein – original plaintiff instituted Regular Civil Suit No.932 of 1996 in the Court of learned Civil Judge (S.D.), Junagadh for partition, declaration and injunction directing to the defendants to implement the family arrangement dated 07/02/1989. The Appellant herein – original defendant No.1 filed written statement submitting that proper valuation has not been fixed and consequently proper court fees has not been paid; the suit is barred by limitation as well as pecuniary jurisdiction. It was the case on behalf of the petitioner herein – original defendant No.1 that proper valuation of the suit was Rs.7,06,000/- and, therefore, the plaintiff was required to pay court fees on Rs.7,06,000/-. It appears that original plaintiff submitted application Exh.5 for interim injunction. Simultaneously, the petitioner herein – original defendant No.1 submitted application Exh.40 to decide proper valuation of the suit property and to pay deficit court fees. It appears that without deciding the application Exh.40 i.e. with respect to the proper valuation of the suit property as well as without deciding the question with respect to limitation, learned Trial Court allowed the application Exh.5 vide order dated 10/04/1997.
2.2 It appears that being aggrieved by and dissatisfied with the order dated 10/04/1997 passed by learned Trial Court below Exh.5, the petitioner herein – original defendant No.1 preferred Civil Misc.Appeal No.74 of 1997 in the District Court, Junagadh and learned Appellate Court i.e. 2nd Joint District Judge, Junagadh vide order dated 06/06/1997 partly allowed the said appeal and quashed and set aside the order passed by learned Trial Court below Exh.5 and directed that learned Trial Court to decide and dispose of application Exh.5 as well as dispute with respect to jurisdiction, court fees and limitation along with application Exh.5 and till then, the parties to maintain status quo in respect to the suit property.
2.3 It appears that being aggrieved by and dissatisfied with the order dated 06/06/1997 passed by learned 2nd Joint Civil Judge, Junagadh in Civil Misc.Appeal No.74 of 1997, the plaintiff preferred Civil Revision Application before this Court and the same came to be confirmed by this Court. It appears that thereafter without framing any preliminary issue with respect to limitation, learned Trial Court dismissed the application Exh.5 and disposed of application Exh.40 and it is held that proper valuation of the suit was Rs.7,06,000/- and consequently directed the plaintiff to pay deficit court fees. While deciding application Exh.5, learned Trial Court considered question of limitation and held that the suit is barred by limitation. At this stage, it is required to be noted that the said finding was while deciding application Exh.5 only and not on preliminary issue framed and/or on application under Order 7 Rule 11(d) of the Code of Civil Procedure. It appears that on the very day, learned Trial Court passed order below Exh.1 and dismissed the suit by observing that in view of findings on limitation while deciding application Exh.5 and when the suit is held to be barred by limitation, the same is required to be dismissed and learned Trial Court dismissed the suit vide order dated 09/01/1998.
2.4 It appears that being aggrieved by and dissatisfied with the order passed below Exh.5, original plaintiff preferred Civil Misc.Appeal No.14 of 1998. Original plaintiff also preferred Regular Civil Appeal No.13 of 1998 against the judgement and decree passed by learned Trial Court i.e. order passed below Exh.1 dismissing the suit on the ground that the suit is barred by limitation. It appears that the order passed by learned Trial Court below Exh.40, by which, valuation of the suit was fixed at Rs.7,06,000/- was not challenged either by way of Civil Misc.Appeal or Regular Civil Appeal and as such rightly not challenged as against the order passed below neither Civil Misc.Appeal nor Regular Civil Appeal was maintainable.
2.5 By impugned common judgement and order dated 26/02/1998, learned 2nd Joint District Judge, Junagadh has allowed Regular Civil Appeal No.13 of 1998 and has quashed and set aside the judgement and decree passed by learned Trial Court dismissing the suit on the ground of limitation by observing that without framing the issue with respect to limitation and even a preliminary issue and solely relying upon observations made while deciding interim injunction application Exh.5, learned Trial Court ought not to have dismissed the suit. Learned Appellate Court partly allowed Civil Misc.Appeal No.14 of 1998 by quashing and setting aside the order passed below Exh.5 and Exh.40 and directing the learned Trial Court to decide application Exh.5 and to decide the application for granting temporary injunction on merits, as directed by this Court in Civil Revision Application No.849 of 1997 dated 21th October,1997. Learned Trial Court also directed the parties to maintain status quo with respect to the suit property till then.
2.6 Being aggrieved by and dissatisfied with the impugned judgement and order dated 26/02/1998 passed by learned Appellate Court i.e. learned 2nd Joint District Judge, Junagadh in Regular Civil Appeal No.13 of 1998 remanding the matter to the learned Trial Court, the appellant herein – original defendant No.1 has preferred the present Appeal from Order No.125 of 1998 and being aggrieved by and dissatisfied with the order passed by the learned Appellate Court in Civil Misc.Appeal No.14 of 1998, the petitioner – original defendant has preferred the present Civil Revision Application No.462 of 1998.
3. Mr.Mehul Shah, learned advocate has appeared on behalf of the petitioner herein - appellant – original defendant No.1 and Mr.Vikram Thakore, learned advocate has appeared on behalf of original plaintiff in the present Civil Revision Application as well as Appeal from Order.
4. Having heard learned advocates appearing on behalf of the respective parties and considering the order passed by learned Trial Court as well as learned Appellate Court, it appears to the Court that learned Trial Court was not justified in dismissing the suit on the ground of limitation solely relying upon observations made while deciding the interim injunction application Exh.5 application. It cannot be disputed that whatever the observations are made while deciding interim injunction application Exh.5 are always tentative and while deciding interim injunction application only and if the learned Trial Court is of the opinion that the suit is required to be dismissed on the ground that the same is barred by limitation, in that case, the same can be done on application by defendant requesting to frame preliminary issue with respect to limitation or in application under Order 7 Rule 11(d) of the Code of Civil Procedure and after giving an opportunity to the respective parties. However without framing preliminary issue, it was not permissible for the learned Trial Court to dismiss the suit solely relying upon the observations made while deciding application Exh.5. Under the circumstances, no illegality has been committed by learned Appellate Court in quashing and setting aside the judgement and decree passed by learned Trial Court dismissing the suit and remanding the same to the learned Trial Court.
5. Even there is a broad consensus between learned advocates appearing on behalf of the respective parties that the order passed by the learned Trial Court dismissing the suit cannot be sustained and learned Appellate Court has rightly remanded the matter to the learned Trial Court restoring the suit. However, learned advocate appearing on behalf of the petitioner has submitted that in that case it will be open for the defendant to submit an appropriate application either under Order 7 Rule 11(d) of the Code of Civil Procedure or to submit appropriate application for framing preliminary issue with respect to limitation and learned Trial Court be directed to consider the same in accordance with law and on merits, without in any way being influenced by the order passed below Exh.5.
6. Mr.Vikram Thakore, learned advocate appearing on behalf of respondent No.1 herein - original plaintiff has submitted that technically it can be said that the order passed by learned Trial Court passed below Exh.40 determining valuation of the suit at Rs.7,06,000/- cannot be said to have been challenged before learned Appellate Court, in that case, some reasonable time may be granted to the plaintiff to pay deficit court fees. The aforesaid is not objected by Mr.Mehul Shah, learned advocate appearing on behalf of original defendant No.1. It is also requested by learned advocate appearing on behalf of the respective parties that learned Trial Court is not required to pass any further order in application Exh.5 and the parties may be directed to maintain status quo, which has been continued till date and Exh.5 application be treated as having been disposed off.
7. In view of the above and for the reasons stated hereinabove and there is a broad consensus between learned advocates appearing on behalf of the respective parties, the present Civil Revision Application as well as Appeal from Order are disposed of in terms of the following order:
(i) The impugned judgement and order dated 26/02/1998 passed by learned 2nd Joint District Judge, Junagadh in Regular Civil Appeal No.13 of 1998 in so far as quashing and setting aside judgement and decree passed by learned Trial Court in dismissing the suit and remanding the matter to the learned Trial Court is hereby confirmed.
(ii) So far as impugned common order dated 26/02/1998 passed by learned 2nd Joint District Judge, Junagadh in Civil Misc.Appeal No.14 of 1998 is hereby modified to the extent by directing the parties to maintain status quo till final disposal of the suit and the order passed by learned Appellate Court in Civil Misc.Appeal No.14 of 1998 quashing and setting aside the order passed by learned Trial Court passed below Exh.40 is hereby quashed and set aside, meaning thereby, the order passed by learned Trial Court fixing valuation of the suit property at Rs.7,06,000/- is hereby confirmed and the three months time is hereby granted to the plaintiff to pay deficit court fees on Rs.7,06,000/-. It goes without saying that if the plaintiff fails to pay deficit court fees within stipulated time as stated hereinabove, further consequences shall follow. Under the circumstances, the Regular Civil Suit in question be treated as Special Civil Suit and new number be given.
(iii) It will be open for the petitioner herein – appellant herein – original defendant No.1 to submit an appropriate application raising preliminary issue with respect to limitation or to submit appropriate application under Order 7 Rule 11(d) of the Code of Civil Procedure within a period of two months from today and as and when such applications are made, the same be considered by learned Trial Court in accordance with law and on merits and after giving an opportunity to all concerned and without in any way being influenced by order passed below Exh.5, within a period of three months from the date of filing of such applications and any observations made by learned Trial Court while deciding application Exh.5 earlier shall be treated as tentative while deciding interim injunction application only.
8. With this, the present Appeal from order as well as Civil Revision Application are partly allowed in aforesaid terms. Rule is made absolute to the aforesaid extent. Registry is directed to send writ of this order to the learned Trial Court immediately. No costs.
[M.R.SHAH,J] *dipti