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Gupta and Co. Vs. Kripa Ram Brothers - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1934All620
AppellantGupta and Co.
RespondentKripa Ram Brothers
Excerpt:
.....although the suit has not in one sense been completely disposed of. here the court below has decided the question of the amount of the court-fees that is payable at a slightly earlier stage, but it is nevertheless a decision on one of the points that may well be in controversy. i am therefore of opinion that it would be in accordance with the opinions expressed generally in the full bench cases of this court as well as the other cases cited above, to hold that a mere decision as to the amount of the court-fees payable does not amount to a 'case decided' nor is it necessarily an irregularity in procedure or illegality or a refusal to exercise jurisdiction. by applying the principle which i have laid down for myself to follow, i am clearly of opinion that in the present instance no'..........question would be, whether the court had jurisdiction to pass the order or not. court hearing a suit has jurisdiction to decide whether the court-fee paid is sufficient or not. it may decide rightly or it may decide wrongly. in either case, the 'decision is within the competence of the court and in this view it cannot be said that in deciding that the court-fee was insufficient the court exercised a jurisdiction not vested in it by law. the high court in revision does not correct a mere error of law. though the learned judges have not said so in so many words they have, i think, held that there was no jurisdiction in the court below to pass the order demanding further court-fee, because, in making that order, the court held in effect that if the additional court-fee was not paid the.....
Judgment:

Sulaiman, C.J.

1. This case has been, referred to a Full Bench because of a. conflict of opinion in this Court. The-applicant firm was the plaintiff in the-Court of the Munsif of Agra in a suit brought to get a previous decree set aside. On a report made by the office that the court-fee paid by the plaintiff was insufficient, the Court, having heard the plaintiff's counsel, held that the amount of the court-fee paid was insufficient and ordered that the plaintiff should make good the deficiency. Instead of either paying the balance of the court fee or allowing the plaint to be rejected and then appealing, from the order, the plaintiff filed an application in revision from the order of the Munsif challenging its propriety. The main question in the case is whether a. civil revision lies from such an order and can be entertained by this Court. It is not necessary to deal at length with the contention that the record having been sent for by a Single Judge of this Court the question whether a case has or has not been decided must be deemed to have been set at rest and it is no longer open to the respondent's counsel to urge that this High Court has no jurisdiction to entertain a revision. Obviously an ex parte order directing the record to be sent for cannot finally dispose of the question whether this Court has jurisdiction to entertain a revision or for the matter of that whether a revision at all lies.

2. There are undoubtedly a large number of cases in this very Court in which opinions have been expressed either that a revision lies or that it does not lie. The cases other than those in which more court-fees were demanded are not relevant. I should however like to consider the recent Full Bench cases of this Court in particular so as to see whether the principles laid down therein apply to the case before us. In Buddhu Lal v. Mewa Ram A.I.R. 1921 All. 1 it was held by the majority of the Judges that no revision would Ha from a finding recorded by the Court below that it had jurisdiction to entertain the suit. Where therefore the decision amounts to a mere finding on an issue no revision would lie under this Full Bench ruling.

3. In Ram Sarup v. Gaya Prasad : AIR1925All610 a revision from an appellate order directing the setting aside of an ex parte decree when the appellate Court had had no power to intervene at all was allowed. But in that case the revision was from the order of the District Judge passed on appeal before whom certainly there was a case pending which had been finally disposed of by the Judge and after such disposal no further matter remained pending before him. The order no doubt was not a decree nor even an appealable order, nevertheless it was an order which marked the complete termination of the case pending before the District Judge and was therefore considered to come within the scope of Section 115, Civil P.C. This case is an authority for the proposition that where an independent proceeding, even though not amounting to a suit, is completely disposed of, it would be a 'case' decided within the meaning of the section. In Radha Mohan v. Abbas Ali : AIR1931All294 it was laid down that an order setting aside an ex parte decree was a 'case' decided within the meaning of the section and that a revision would lie from such an order. Obviously when an ex parte decree is passed the suit for the time being is terminated and a fresh and independent proceeding is started by an application under Order 9, Rule 13, Civil P.C. for the setting aside of such a decree. The final disposal of such an application was held in that case to amount to the decision of a 'case,' particularly as the propriety of that decision could not be challenged subsequently in an appeal from the decree ultimately passed in the case.

4. There are many other cases in this Court in which for instance, it has been held that an application from an order dismissing an application for leave to sue in forma pauperis can be entertained or that a revision would lie from an order refusing the defendant to file a written statement or refusing to hear him or from orders superseding an arbitration or arbitrarily referring the case to arbitration. It is not necessary to consider the correctness of these rulings in this case, for they can certainly be distinguished. It is equally unnecessary to review the authorities in the other High Courts where also a certain divergence of opinion has prevailed. Broadly speaking it may be said that, barring certain Single Judge cases, which have been recently overruled by a Division Bench, the Madras High Court has been entertaining revisions from orders demanding more court-fees. On the other hand, the Patna High Court has in its latest pronouncement come to the conclusion that the order amounts to the decision of an issue and no revision would lie. In Calcutta the opinion has been fluctuating, but there is a recent case in which a revision has not been entertained. The Lahore High Court has not entertained applications principally on the ground that there is another remedy open co the applicant No case of the Bombay High Court directly in point has been cited before us.

5. The cases of our own High Court which are to the point are the lolloping : In Chakhan Lal v. Kanhaiya Lal A.I.R. 1923 All. 118, Pig-got and Walsh, J., I, held that a defendant who had been ordered to pay additional court-fees on his plea of set-off could not come up in revision from the order of the Court as the case was governs by the principles laid, down by the Full Bench in Buddhu Lal's case A.I.R. 1921 All. 1. It was on this ground alone that the Bench dismissed the application.

6. This case does not appear to have been brought to the notice of the Bench which decided the case of Lakshmi Narain Rai v. Dip Narain Rai : AIR1933All350 . That is a case directly in favour of the applicant and laid down that an application in revision from an order demanding court fees lay inasmuch as there was a oaao decided and there was failure on the part, of the Court to exercise jurisdiction on vested in that Court. This opinion was based on certain Calcutta, Madras and Patna High Courts' decisions which it is not necessary to examine. As observed above, there are other rulings of Calcutta and Patna which lay down the contrary. Reliance however was placed on the case of Jagannath Sahu v. Chhedi Sahu : AIR1929All144 where a revision from an order appointing a new arbitrator in a wholly irregular manner was entertained. The other case relied upon, namely, Poran Lal v. Rup Chand : AIR1931All761 , was a similar case in which the ruling of Jagannath Sahu's case : AIR1929All144 was followed. In my separate judgment I remarked that the case of Jagannath Sahu was in point and as the Full Bench case of Buddhu Lal was not directly against that view, I was not prepared to differ from the opinion expressed by my learned colleague. In Lakshmi Narain Rai's case : AIR1933All350 the learned Judges first considered whether the order of the Court below demanding more court-fees was proper and correct and having decided that it was wrong they came to the conclusion that being, what they called an erroneous order for payment of deficient court-fee, the High Court could interfere because it was a case amounting to a failure to exercise a jurisdiction vested in the Court. The attention of the learned Judges was drawn neither to Chakhan Lal's case A.I.R. 1923 All. 118 nor to an unreported ruling in Saiyid Wajid Ali v. Kamta Prasad Civil Revn. No. 91 of 1931, in which it was laid down that the Court below had jurisdiction to decide whether the court-fee paid on the plaint was proper or not and having arrived at the conclusion that insufficient court-fee had been paid, even if this view were erroneous in law, the jurisdiction of the Court to pass the order which it did was not affected.

7. It seems to me that it is not possible to lay down say complete and exhaustive definition of the word ' case.' Certainly the word 'case' is not an exact equivalent of the word 'suit.' Obviously it is something wider. At the same time, it may (not be so wide as to include every order that is passed by a Court during the trial of a suit or proceeding pending before it. It cannot in my opinion be a case unless it is a proceeding which can be regarded as something separate and in a sense independent from the suit under hearing, and the termination of that proceeding should be somewhat different from mere orders passed in the ordinary trial of the suit itself. Ordinarily speaking, orders passed by the same Court from time to time during the trial of a suit would not be regarded as so many separate cases decided by the Court each of them being revisable under Section 115, C.P.C. But where the case is a, proceeding which can be considered separate and distinct and is finally disposed, of by an order which terminates it, it may well be considered to be a case decided although the suit has not in one sense been completely disposed of. There is, in my opinion, another aspect of the case which is also fatal to this revision. After all the decision of the Court below that more court-fees are payable is a mere decision on a point of law which arose in the case and indeed, which, it was the duty of the Court to decide. It cannot be seriously contended that if the deficiency in the amount of the court-fees paid had not been discovered at that stage but the question had arisen on a plea taken in the written statement and an issue had been framed on that point and then the Court had decided it, no revision would lie under the authority of the Pull Bench ruling in Buddhu Lal's case A.I.R. 1921 All. 1. The position, to, my mind, is very similar and, at any rate, analogous. Here the Court below has decided the question of the amount of the court-fees that is payable at a slightly earlier stage, but it is nevertheless a decision on one of the points that may well be in controversy. The Court had jurisdiction to decide this point and if it has taken an erroneous view of the law it has committed no irregularity. I do not think that it can be said that the Court below, having decided this point, is now refusing to exercise jurisdiction to entertain the suit.

8. This was the basis of the decision in another unreported case Chaube Narain Rao v. Gur Narain Civil Revn. No. 268 of 1930, in which Banerji, J., and myself held that even if the Court below has not taken a correct view of the law, that at most would amount to a mere error of judgment and not be any irregularity in procedure or any illegality or acting without jurisdiction so as to permit the applicant to get the order revised. I am therefore of opinion that it would be in accordance with the opinions expressed generally in the Full Bench cases of this Court as well as the other cases cited above, to hold that a mere decision as to the amount of the court-fees payable does not amount to a 'case decided' nor is it necessarily an irregularity in procedure or illegality or a refusal to exercise jurisdiction. I would therefore dismiss the revision With costs.

Maker J.

9. After the very exhaustive judgment that has just been delivered by my Lord the Chief Justice, I do not propose to discuss most of the cases already commented on. I would just add a word or two. Section 115. Civil P.C. gives revisional jurisdiction to the High Court in certain cases only. The High Court may exercise jurisdiction where any case has been decided. The word 'case' indicates that what is meant need not be the suit or any other proceeding before the Court below in its entirety. It is possible there-fore that a 'case' may arise during the pendency of a suit. But the word also indicates, to my mind, that what has been decided must be something complete in itself so that it may be separated and looked upon as a matter independent of the suit. I here recall what I said in a decision of mine in Bai Krishna v. Ram Krishna : AIR1929All957 :

The Court has to pass orders at every step but every order cannot be called the decision of a case. A case must be something complete in itself so that it may be treated as an independent matter.

10. This seems to me to be the idea of the word 'case' used in Section 115. It follows that an order passed in the course of the trial of a suit, as a necessary step for the decision of the suit, itself cannot be called a 'case.' It has been held that the trial of an issue however important it may be, including an issue as to jurisdiction of the Court itself, cannot be treated as a case decided: vide Buddhu Lal v. Mewa Ram A.I.R. 1921 All. 1. Where an ex parte decree is made and the jurisdiction of the Court in the matter of the suit comes to an end, fresh proceedings may be started by the party against whom the decree has been made by an application to have the ex parte decree set, aside. The proceedings thus started may be treated as proceedings in the suit, yet it should be obvious that the newly started proceedings are complete in themselves amounting to a 'case.' It has accordingly been decided in a Pull Bench decision of this Court in Radha Mohan Datt v. Abbas Ali Biswas : AIR1931All294 that a revision would lie. where the Court passed an order setting aside an ex purte decree in defiance of the provision of Order 9, Rule 13, Civil P.C. Examples need not be multiplied, but as each case arises the question to be considered is whether the proceedings out of which the application for revision has arisen, in something, although arising in the suit, may be treated as independent of the trial of it. It is impossible, at any rate, undesirable, to make an attempt to give an exhaustive definition of what a 'case' may be and what it may not be. So many different questions may arise in future and have already arisen as to cause a great divergence of opinion among the learned Judges. I would therefore not make any further attempt at an exhaustive definition of the word 'case.' What I have said was only to indicate the method in which I approach a question that arises before me in revision. By applying the principle which I have laid down for myself to follow, I am clearly of opinion that in the present instance no' case' has been decided by the Court below. The question arose out of a suit of which proper cognizance was taken by the Court below. Having taken cognizance of the suit, the learned Munsif had to decide whether the court-fee paid was sufficient or not. Accordingly he decided that the court-fee paid was insufficient. This did not terminate the proceedings before the Court and therefore it cannot be said that any 'case' was decided. The order passed was only one of the orders necessary and preliminary to the hearing of the suit, and it cannot be said that it was something a complete and independent matter.

11. The decision in Lakshmi Narain Bai v. Dip Narain Rai : AIR1933All350 starts with examining the question whether the court-fee paid was sufficient or not. This, in my opinion, with all respect, was not the proper way. The first question to be decided was whether there was a 'case decided' before this Court. If it was a 'ease decided' then the question would be, whether the Court had jurisdiction to pass the order or not. Court hearing a suit has jurisdiction to decide whether the court-fee paid is sufficient or not. It may decide rightly or it may decide wrongly. In either case, the 'decision is within the competence of the Court and in this view it cannot be said that in deciding that the court-fee was insufficient the Court exercised a jurisdiction not vested in it by law. The High Court in revision does not correct a mere error of law. Though the learned Judges have not said so in so many words they have, I think, held that there was no jurisdiction in the Court below to pass the order demanding further court-fee, because, in making that order, the Court held in effect that if the additional court-fee was not paid the Court would not hear the case. This would be a refusal to exercise a jurisdiction vested in the Court. As I have pointed out, the whole question was approached in the reverse order to that which was proper. In my opinion, therefore the case of Lakshmi Narain Rai : AIR1933All350 does not carry the weight which a decision of two learned Judges of this Court should carry. In the result, I would also dismiss the application with costs.

King, J.

12. I agree and have nothing to add.

13. The application is dismissed with coats.


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