Rajasthan High Court - Jaipur
Kamal Engineering Works vs Ashwani Kumar And Ors. on 12 September, 1989
Equivalent citations: 1990(1)WLN534
JUDGMENT S.N. Bhargeva, J.
1. These two revision petitions have been fifed against the order dated 25-8-1987 passed by the Additional District Judge, Jaipur District, Jaipur, by the plaintiff, asking the plaintiff to file additional court fees. These two revisions arise out of similar facts and circumstances and involve common questions of law and, therefore, are being disposed of by this common order.
2. The plaintiff-petitioner filed to separate suits for specific performance of agreement dated 21-3-1983 and permanent injunction against the defendants Before filing the written statement, the defendants filed separate applications Under Section 11 of the Rajasthan Court Fees and Suits Valuation Act, 1961 (here in after referred to as the 'Court' Fees Act') and under Order 7 Rule 10, CPC. The trial court decided these applications vide its impugned orders dated 25-8-1987 accepting the applications and asking the petitioner-plaintiff to pay the additional court fees. It is against these orders that the present revision petitions have been filed.
3. A preliminary objection has been taken bo the defendants that the revision petitions are not maintainable against an order directing the plaintiff to file additional court fees. In this connection, learaed Counsel for the defendants has placed reliance on Buddhoo Lal and Anr. v. Mewa Ram [AIR 1921 All 1] where in it has been held that decision on preliminary point as to territorial jurisdiction is not 'case decided'; Firm Lal Chand Mangal Sain v. Firm Behari Lal Mehar Chand [AIR 1924 Lahore 425] where in also it had been held that the High Court has no jurisdiction to entertain an application for the revision of an interlocutory order; and Sham Narain Singh v. Basudeo Prasad Singh [AIR 1930 Patna 277] wherein it has been observed that the High Court should not interfere in revision with an order demanding additional court fees from the plaintiff since the plaintiff has another and proper remedy open to him by way of appeal on rejection of plaint.
4. Reliance has also been placed by learned Counsel for the defendants on Messrs. Gupta and Co. v. Messrs. Kripa Ram Brothers (AIR 1934 Allahabad 620) where in it had been observed that a mere decision given by a Court in the trial of the suit as to the amount of the court-fee payable does not amount to a case decided nor is it necessarily an irregularity in procedure or illegality or a refusal to exercise jurisdiction and, therefore, no revision on such a decision is competent and1 maintainable.
5. Reliance has also bees placed on Paras Nath v. Ram Bahadur and ors. (AIR 1936 Oudh 22) where in also it bad been observed that no revision lies to the High Court from an order of the Court below calling upon the plaintiff to make good the deficiency of any amount of the court fees paid by him. It is merely an interlocutory order and as such, not open to revision. It does not amount to a 'case decided' nor is it necessarily an irregularity in procedure or an illegality or a refusal to exercise jurisdiction as would justify interference Under Section 115 CPC.
6. Learned Counsel for the defendants has further placed reliance on Peoples Bank of Northern India Ltd. v. Kanhaiya Lal and ors. (AIR 1933 Lahore 80) wherein relying on the cases of Firm Behari Lal Mehar Chand, Messrs. Kripa Ram Brothers and Paras Nath (supra) it had been held that no revision lies from order of court calling upon plaintiff to make good deficiency in court fees either Under Section 115, PC or Government of India Act (1935).
7. He has further placed reliance on Mst. Rupia v. Bhatu Mehton and ors. (AIR 1944 Patna 17) (FB) wherein it had been observed that the court has jurisdiction to revise the valuation put by the plaintiff in a suit to obtain a declaratory decree with consequential relief.
8. Reliance has also been placed on Kanhaiya Lal v. Ramkishan and Ors. wherein, relying on an earlier decision in Messrs Kripa Ram Brothers (supra) and other cases, it had been reiterated that when a question of court-fee is decided and it is held that the court fees paid by the plaintiff is sufficient or insufficient no case is decided by the court and the order is not revisiable.
9. Lastly, he has placed reliance on Baldeo Girt Sadhak v. Ist Addl. Civil Judge where in the High Court while dealing with the writ petition, refused to review the earlier order passed by it, dismissing the revision petition Under Section 115 CPC .............the order of the court regarding deficiancy of court fees on ..........the petitioner has another same............of an appeal in case the decree is passed against him.
10. On the other hand, learned Counsel for the petitioner plaintiff has placed reliance on Lakshmi Narain Rai v. Dip Narain Rai (AIR 1933 All 350) (DB) wherein the Division Bench held that an order deciding whether additional court fees should be paid or not is an order deciding the case within the meaning of Section 115 CP and is open to review. This case has been noticed by the Full Bench in Messrs. Kripa Ram Brothers (supra) and the Full Bench had taken a contrary decision.
11. Learned Counsel for the petitioner has further placed, reliance on AIR 1947 Allahabad 340 wherein the learned Single Judge had again, even aftet noticing Kripa Ram's case (supra) (FB) had held that the order of the court calling upon the plaintiff to make the deficiency good in the amount of court fees paid by him on the plaint is a case decided within the meaning of Section 115 CPC and the order is revisable. Learned Single Judge also referred to the later decision of a Division Bench of Allahabad High Court in support of his decision i.e. Mt. Mohri Kunwar v. B. Keshri Chandra (AIR 1941 Allahabad 298). The oase of Mohri Kunwar has not been noticed in the later decision of the High Court in Kanhaiya Lal's case (supra).
12 Learned Counsel for the petitioner has further placed reliance on M/s Himalayan ......... v. Maharashtra Electricity Board wherein this Court has held that in the suit for declaration if the contract in question stands cancelled, the plaintiff is not liable to pay damages claimed by the defendant, and the court fees payable was Under Section 24(e) of the Act and the case was not covered Under Section 23(1) of the Act, and the plaintiff had discretion to value his relief.
13. Learned Counsel for the petitioner has also cited Yaqoob All v. Firm Haji ji Khanji Ibrahimji, AIR 1984 Rajasthan 1 wherein it has been held that the interlocutory order relating to jurisdictional error, if it falls within the expression "any case which has been decided," can be challenged in revision provided the aggrieved party satisfies the High Court that the order has resulted in failure of justice or has caused irreparable injury to him. Mere fact that such an order can be challenged by setting forth an objection in the memo of appeal against the decree Under Section 115 CPC would not be sufficient for not invoking the revisional jurisdiction Under Section 115 CPC. These observations were made while their Lordships were dealing with the provisions of Order 16 Rule 1 CPC and not with regard to a decision asking the plaintiff to pay additional court fee.
14. Learned conusel for the plaintiff petitioner has also placed reliance on Har Vilas v. Kalyan Prasad and ors. (1983 RLR 928) where in this Court interfered is decision in the matter where the trial court had rejected the application for examining a hand-writing expert to prove the document inspite of the fact that such an order could be challenged in appeal, and observed that the High Court is empowered to rectify an order of subordinate court at any stage and revision is no bar merely because correctness of such an order could be challenged in appeal. This authority also does not relate to an order passed by the trial court asking to pay the additional court fees.
15. Reliance has also been placed on Mannu Das and ors. v. Klsto Das ond another wherein their Lordships had observed that if the valuation of the suit property has been pat by the plaintiff arbitrarily or unreasonably, the court can interfere with in exercise of powers u/Order 7, Rule 11, CPC.
16. I have carefully gone through the case file, considered the various submissions made at the bar and the authorities cited before me.
17. There is no direct authority of this Court brought to my notice on the point in question. A mere decision given by a court in the trial of a suit as to the amount of court fees payable does not amount to a 'case decided' nor is it necessarily an irregularity in procedure or illegality or refusal to exercise jurisdiction and therefore, no revision against such an order is competent. More over, it is an interlocutory order and as such not open to revision. I am fully in agreement with the observations of Hon'ble Suleman, C. J. in M/s. Gupta and Co. (supra), a Full Bench decision where in after discussing in detail the meaning of the word 'case' it has been held that no revision on such a decision is competent and maintainable. The decisions on preliminary issue regarding the court fees does not result in deciding the whole suit and does not amount to a decision of the case. More over, the correctness of the order can be challenged in appeal Under Section 105 CPC. Thus, the preliminary objection raised on behalf of the defendents is upheld.
18. In the result, both these revision petitions are dismissed without any order as to costs. Three month's time is allowed to the petitioner-plaintiff to make good the dificit court fees in the trial court.