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Dr. Sk Wajid Ali Vs. Mst. Jiga Bibi - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 299 of 1965
Judge
Reported inAIR1968Ori183; 34(1968)CLT549
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2) and 115 - Order 6, Rule 17 - Order 7, Rule 11; Specific Relief Act, 1877 - Sections 42
AppellantDr. Sk Wajid Ali
RespondentMst. Jiga Bibi
Appellant AdvocateB.B. Rath and ;Md. Y.A. Rahim, Advs.
Respondent AdvocateS.K. Rahenoma and ;S.P. Acharya, Advs.
DispositionRevision dismissed
Cases ReferredBasuki v. Satyakinkar
Excerpt:
.....filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the..........ad valorem court fee. plaintiff amend-ed the plaint and valued the suit at rupees 4000, but filed an application under order 33, rule 1, c. p. c. for permission to sue in forma pauperis. this application was dismissed on 26-7-65 on a finding that the plaintiff was not a pauper and had capacity to pay the ad-valorem court fee. on 17-4-65 plaintiff filed an application for amendment of the plaint to delete certain reliefs. in that application the plaintiff prayed that the prayers ka and kha in the original plaint were to be deleted and in their place a prayer to the effect 'that the disputed land and the registered sale deed standing in the name of the defendant are to be declared benami' is to be inserted, and the original prayer ga and gha were to be renumbered as kha and ga.....
Judgment:
ORDER

G.K. Misra, J.

1. Title suit No. 41 of 1963 was filed in the Court of the Munsif Kendra-para. Originally the suit was valued at Rs 75. The pravers were for a declaration that the disputed land was the plaintiff's occupancy Chandna holding; for confirmation of possession: for a declaration that the defendant had no title or possession therein and for such other reliefs as the plaintiff is entitled to in law and equity. Amongst other defences the valuation of the suit and the insufficiency of Court fee payable were challenged. On 11-9-64 the Additional Munsif held that the market value of the suit land was Rs 4000. Plaintiff was directed to amend the plaint and pay the requisite ad valorem Court fee. Plaintiff amend-ed the plaint and valued the suit at Rupees 4000, but filed an application under Order 33, Rule 1, C. P. C. for permission to sue in forma pauperis. This application was dismissed on 26-7-65 on a finding that the plaintiff was not a pauper and had capacity to pay the ad-valorem Court fee. On 17-4-65 plaintiff filed an application for amendment of the plaint to delete certain reliefs. In that application the plaintiff prayed that the prayers Ka and Kha in the original plaint were to be deleted and in their place a prayer to the effect 'that the disputed land and the registered sale deed standing in the name of the defendant are to be declared Benami' is to be inserted, and the original prayer Ga and Gha were to be renumbered as Kha and Ga respectively. In substance, on the basis of amendment the prayer in the plaint is for a declaration that the disputed land and the registered sale deed stood benami in the name of the defendant in which she had no right, title and interest. There is no dispute that the amended prayer is only a declaratory relief.

On the basis of this amendment, plaintiff wanted to pav Court fee of Rs. 22.50 P as the declaratory suit was valued at Rs. 4000. The Court fee paid on the original plaint was Rs 7.50 P. If the amendment had been allowed plaintiff was to pay a further Court fee of Rs 15 only and not ad-valorem Court fee on Rs. 4000.

On 13-9-65 the application for amendment was rejected by the learned Munsif. Against this order the Civil Revision was filed on 22-10-65 No prayer for stay of the suit was made in the civil revision. The trial Court granted Unit to the plaintiff to pay deficit ad valorem Court fee on Rs 4000 on various dates. As it was not ultimately paid, the plaint was rejected on 29-3-66. An application under Order 9, Rule 9, C. P. C., for restoration of the suit was dismissed on 4-4-66 A similar aoplicatior for restoration of the suit under Sec. 151 C. P. C., was dismissed on 14-7-66 The Civil Revision was admitted on 20-4-66 after the rejection of the plaint

2. Two questions arise in the civil revision.

(i) Was the order refusing the prayer for amendment of the plaint to delete certain reliefs contrary to law and oassed in illegal exercise of jurisdiction?

(ii) If the order was contrary to law. can this Couri evercise its power under Section 115 C P. C. to set it aside even though no appeal was filed against the order rejecting the nlaint?

3. The learned Munsif did not allow the amendent to delete the firrst two reliefs in the original plaint as the nature of the suit would he changed. The view taken by him is contrary to law Even if the amendment was flowed there would he no change in the nature of the suit The averments in the plaint relating to materialfacts were not altered. Plaintiff's case was that he acquired the disputed land in the name of the defendant. The registered sale deed standing in the name of the defendant was benami and that the plaintiff was in possession. These facts were contested in the written statement. If ultimately the Court finds that plaintiff's versions that the suit land stood benami in the name of the defendant and that the plaintiff was in possession were true, plaintiff's prayer for a mere declaration is tenable and the suit would not fail due to absence of a prayer for consequential relief of confirmation of possession or, in the alternative. for recovery of possession. Section 42 of the old Specific Relief Act would not be a bar in such a rase. If. on the other hand, the Court comes to a conclusion on evidence that the plaintiff' was not in possession, the suit is bound to fail as the plaintiff sought no consequential relief. In either case the nature of the suit is not changed. Only the reliefs are different. Before evidence is gone into and a finding is recorded thereon, Court is not in a position to say that the averments made in the plaint are false and cannot compel the plaintiff to ask for consequential relief. That is a risk which the plaintiff takes and on that basis pays Couri fee. If ultimately the framing of the suit is found to be bad due to absence of consequential relief, which is to be prayed on the facts and circumstances of a particular case the suit is bound to be dismissed. But that is at a much later stage when the Court comes to a conclusion contrary to the averments in the plaint. The learned Munsi: failed to keen in view this legal position and exercised his jurisdiction illegally in rejecting the amendment of the reliefs sought for. Change of reliefs with material averments remaining intact, does not alter the nature of the suit.

4. The next point for consideration is whether this Court in exercise of its revi-sional jurisdiction would set aside the impugned order when the petitioner did not file an appeal against the order rejecting the plaint To recall the facts the impugned order was passed on 13-9-1965. The civil revision was filed on 22-10-65 No order was taken from the High Court to stay further proceedings in the suit. The result was that the plaint was rejected on 29-3-1966 when the deficit Court fee called upon from time to time was not paid The order rejecting the plaint is a decree within the meaning of Section 2(2) C P C and an appeal lies therefrom. If the order dated 29-3-1966 in appealable, this Court would not exercise its jurisdiction under Sec 115. C. P. C. to set aside the impugned order even though it might be contrary to law.

5. Mr Rahim placed reliance on AIR 1964 Orissa 136. Radhakrishna v. Bhuvan Sri Svarr Sundar AIR 1954 Cal 588, Kanai-lal v. Pannasashi and AIR 1950 Pat 470, Basuki v. Satyakinkar, in support of hiscontention that if the order dated 13-9-65 is contrary to law, the subsequent rejection of the plaint would not stand in the way of this Court to exercise its revisional juris-diction.

AIR 1964 Orissa 136, is clearly distinguishable and has no application to the facts of this case. Therein, the petitioner applied for substitution as the sole heir of the plaintiff. As the application for substitution was dismissed, the suit was held to have abated This court interfered in that case as the petitioner, after his application for substitution was rejected, had no right of appeal. He could have filed an appeal only with the permission of the Court and not on his own right after the substitution application was rejected. As he had no right of appeal, a revision was maintainable and the subsequent dismissal of the suit ws set aside. AIR 1954 Cal 588, is similarly distinguishable and was referred to in the very Orissa decision. AIR 1950 Pat 470, however, fully supports Mr. Rahim's contention. On similar facts, a Bench of the Patna High Court set aside the order rejecting the plaint even though no appeal had been filed. In Paragraph 7. their Lordships observed thus:

'Lastly reference should be made to the argument of the opposite party that the order rejecting the plaint having the force of a decree and having become final, it cannot be interfered with at this stage. But it should be observed that by interfering with the order of the Sub Judge demanding the deficit Court fee we ought, of necessity as a consequence to set aside the order of the Subordinate Judge rejecting the plaint'

The passage is a bald expression of their Lordships' view and save no reason in support there of

6. The matter was fully considered in AIR 1952 Mad 86 (FB). Satyanarayana-charyulu v. Ramalingam. Their Lordships held that where an order directing payment of additional Court fee is not complied with and it is followed bv an order rejecting the plaint, a revision petition is not maintainable The proper remedy is only by way of an appeal against the order rejecting plaint which is a decree The petitioner should have obtained a stay order from the High Court and should not have allowed the plaint to be rejected T am in respectful agreement with the aforesaid view and with respect dissent from AIR 1950 Pat 470.

Thus though the order of the learned Munsit in refusing amendment was contrary to law. the order cannot be set aside in revision

7. In the result, the revision fails andis dismissed But in the circumstances,parties are to bear their own costs throughout.


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