LACHMAN TARACHAND AND ORS. Vs. BALAKRISHNA GANPAT MAHAJAN AND ORS.
LAWS(MPH)-1949-4-5
HIGH COURT OF MADHYA PRADESH
Decided on April 02,1949

Lachman Tarachand And Ors. Appellant
VERSUS
Balakrishna Ganpat Mahajan And Ors. Respondents


Referred Judgements :-

ANNAMALAI CHETTIAR V. SOLAIYAPPA CHETTIARI [REFERRED TO]
UDMI RAM-RAM SARUP VS. GHASI RAM-SAKHAN LAL [REFERRED TO]


JUDGEMENT

Rege, J. - (1.)THE suit in which this petition is made purports to be for redemption of a mortgage; and, in the alternative, a claim has been made on the Plaintiff's title. One of the contentions on behalf of the Defendants who deny the mortgage and its validity is that the present, value of the property is in excess of the pecuniary jurisdiction of the lower Court; and, ON 7th September 1948 an application was made on behalf of the Defendant that the Plaintiffs maybe called on to elect whether they would ask for relief on the alleged mortgage or on their alleged title. They further urged that issues 8 and 9 -should be decided as preliminary issues. The learned Munsiff held that these issues involved mixed question of law and fact, and it was undesirable to lead evidence on one point alone. He also held that the Plaintiffs could not be asked to abandon one of the alternative claims. The Petitioner seeks revision of this order.
(2.)THE learned Counsel for the Petitioner relied in support of his case on the decision of Chetty J. reported in Annamalai Chettiar v. Solaiyappa Chettiari, A.I.R. 1934 Mad. 6171 152 I.C. 369, in which it was held that an order of a Court refusing to go into the question off jurisdiction before proceeding to hear the suit on merits may amount to an irregularity calling for interference in revision. This view finds support in the case reported in Udmi Ram Ram Sarup v. Ghasi Ram Sakhanlal : 146 I.C. 192 : A.I.R. 1933 ALL. 753, and with it I am in respectful agreement. The learned Munsiff appease however to have loft the question open and perhaps by reason of the enormous delay in the trial of the case decided to take all evidence together and not piecemeal. I have no doubt that the learned Munsiff will apply his mind to the question of valuation of the alternative claim on title and consider whether it could be determined on evidence independently of what may be necessary for proof of other pleas in the ease. He has made a general observation that issues 8 and 9 involve mixed questions of law and fact but it may be possible to take evidence on the question of valuation and determine whether the suit could be tried by the learned Munsiff. Such action would perhaps save time and eliminate inconvenience and expense to parties.
Let the records be returned, the learned Munsiff should dispose of the suit according to Saw in the light of the above observations. I make no order as to costs in the circumstances of the case.



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