- (1.) THIS appeal is directed against judgment and decree dated 10.01.2014 passed by Additional District Judge No.3, Jodhpur, whereby, the judgment and decree dated 28.05.2013 passed by Civil Judge (Junior Division), Jodhpur Metropolitan has been upheld.
(2.) THE facts in brief may be noticed thus : the plaintiff filed a suit seeking specific performance of contract dated 13.10.2011 on 26.12.2011 with the averments that by the agreement entered into between the parties for exchange of property, whereby, it was agreed between the parties that the defendant would transfer a house situated near Meratiyo Silavaton Ki Masjid, Jodhpur and Plot No.220 situated at B.J.S. Colony, Jodhpur against property owned by plaintiff being Plot No.856, Sardarpura, Chopasani Road; on payment of consideration of Rs.25,000/ -; an advance of Rs.6,000/ - was paid, balance amount of Rs.19,000/ - was paid on 15.11.2011, however, despite paying the sum of Rs.19,000/ - the document has not been registered and the possession has not been handed over and, therefore, a decree was sought for specific performance of the agreement dated 13.10.2011 for transfer of the properties i.e. house situated near Meratiyo Silavaton Ki Masjid, Jodhpur and Plot No.220 situated at B.J.S. Colony, Jodhpur. A written statement was filed by the defendant and the averments made in the plaint were accepted; however, the trial court by its order dated 20.07.2012 directed the plaintiff to file the market value of the suit property and by order dated 28.07.2012 it came to the conclusion that the valuation of the suit was not proper and, therefore, directed the plaintiff to properly value the suit and produce the same thereafter. The order dated 28.07.2012 was not complied with and it was stated that the compliance of order was not required. The trial court by order dated 28.05.2013 came to the conclusion that suit was not property valued by the plaintiff and despite opportunity to properly value the suit, the plaintiff failed to comply with the said order and, therefore, rejected the plaint under Order VII, Rule 11(b) CPC.
(3.) FEELING aggrieved, the appellant filed first appeal, wherein, the first appellate court also came to the same conclusion that the suit was not properly valued and dismissed the first appeal. It was submitted by learned counsel for the appellant that the suit was valued under Section 40(d) of the Rajasthan Court Fees and Suit Valuation Act, 1961 ('the Act of 1961') and, therefore, the courts below were not justified in insisting for proper valuation of the suit and dismissing the same under Order VII, Rule 11(b) CPC. I have considered the submissions made by learned counsel for the appellant.;