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Paruchuru Thirumala Satyanarayanacharyulu and anr. Vs. Vannava Ramalingam and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1630 of 1947
Judge
Reported inAIR1952Mad86; (1951)2MLJ74
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2) and 115 - Order 7, Rule 11; Court-fees Act, 1870 - Sections 12
AppellantParuchuru Thirumala Satyanarayanacharyulu and anr.
RespondentVannava Ramalingam and ors.
Appellant AdvocateG. Venkatarama Sastry, Adv.
Respondent AdvocateGovt. Pleader
DispositionRevision dismissed
Cases ReferredRatnavelu Pillai v. Varadaraja Pillai
Excerpt:
revision--order directing payment of higher court-fee--default in compliance--not open to revision after rejection of plaint--appeal, only remedy--code of civil procedure (act v of 1908), section 115; an order directing the payment of additional court-fee in a plaint is not open to revision by the high court, once the order has been followed up by a further order rejecting the plaint on the ground that the additional court-fee demanded has not been paid. the proper remedy of the aggrieved plaintiff is to appeal from the order of rejection of the plaint.; murthiraju v. subbaraju i.l.r. [1944] mad. 626 (f.b.) distinguished.; ratnavelu pillai v. varadaraja pillai (1942) 1 m.l.j. approved. - - .....payment of additional court-fee was not complied with & it was followed by an order dismissing the suit, a revision petition would not be maintainable, but the remedy was only by way of an appeal against the decree. we agree with this observation which no doubt was made 'obiter' in that case.3. the civil revision petition is therefore dismissed with costs.viswanatha sastri, j.4. i respectfully agree. an erroneous order of the lower court demanding additional court-fee is revisable by the high court at the instance of the plff. on the ground that there is a refusal to exercise the jurisdiction vested in the lower court to proceed with the trial & decide the suit unless the condition imposed by the court is fulfilled & the court-fee demanded is paid by the plff. therefore a plff. against.....
Judgment:
1. The petitioners filed a suit in the court of the Subordinate Judge of Guntur for a declaration that they were, or, in the alternative, plff. 2 was the hereditary archaka of a temple. They paid a fixed court-fee of Rs. 100 under Article 17-A of Sch. II, court-fees Act valuing the suit for the purposes of jurisdiction at Bs. 3600. On an objection taken to the correctness of the valuation, the learned Subordinate Judge, after enquiry, found that the suit had been grossly undervalued, that the valuation of the property in suit exceeded Rs. 10,000 & directed the petitioners to pay an additional court-fee of Rs.

400. This order was passed on 14-3-1947 & ten days' time was given for payment of the deficit court-fee. The suit stood ad- journed to 24-3-1947. On that day the suit was called & as the petitioners had not paid the deficit court-fee, the plaint was rejected. The revision petition before us is against the order dated 24-3-1947 rejecting the plaint. Under S, 2 (2), Civ. P.O., an order rejecting a plaint shall be deemed to be a decree. It was therefore open to the peti-tioners to file a regular appeal against that order. AS an appeal was competent, it follows that the revision petition is not maintainable & must therefore be dismissed on this ground.

2. Mr. Venkatarama Sastri argued that though the revision petition as filed purported to be against the order of 24th March, rejecting the plaint, it must be deemed to have been really filed to revise the earlier order of the 14th March directing payment of additional court-fee. He relied on the ruling of the Full Bench in 'Murthi-raju v. subbaraju', L L. R. (1944) Mad 626 which held that a revision petition would lie to the High Court when a subordinate court has held that a plaint has been inadequately stamped. In that case, however, there was no order formally rejecting the plaint before the revision petition was filed against the order directing the plff. to pay an additional court-fee, it was urged before the learned Judges in that case that the petitioner before them could have waited till a consequential order was passed by the lower court rejecting the plaint on non-payment of the additional court-fee demanded & then filed an appeal. But the learned Judges observed:

"The mere fact that an appeal would lie later from the consequential order passed by the Subordinate -Judge if the stamp fee were not paid was no ground for refusing to entertain the petition."

The decision of the Pull Bench is therefore no authority in support of the position that a revision petition would He against an order demanding an additional court-fee even after a consequential order has been passed by the court rejecting the plaint, because the additional court-fee demanded had not been paid. Learned counsel was unable to cite any decided case in which it has been held that even after an order had been passed rejecting a plaint, an appealable order, the party aggrieved could prefer a revision petition against the earlier order demanding the additional court-fee. In our opinion, to allow a civil revision petition to be preferred in such circumstances would be against the well established principles of procedural law. In 'Ratnavelu Pillai v. Varadaraja Pillai',1942-1 M. L. J. 569, Chandrashekhara Aiyar J. made an observation that if the order directing payment of additional court-fee was not complied with & it was followed by an order dismissing the suit, a revision petition would not be maintainable, but the remedy was only by way of an appeal against the decree. We agree with this observation which no doubt was made 'obiter' in that case.

3. The civil revision petition is therefore dismissed with costs.

Viswanatha Sastri, J.

4. I respectfully agree. An erroneous order of the lower Court demanding additional court-fee is revisable by the High Court at the Instance of the plff. on the ground that there is a refusal to exercise the jurisdiction vested in the lower Court to proceed with the trial & decide the suit unless the condition imposed by the Court is fulfilled & the court-fee demanded is paid by the plff. Therefore a plff. against whom an adverse order has been passed with reference to the court-fee payable by him on the plaint has been held entitled to move this Court in revision without waiting for the rejection of the plaint under Order 7, Rule 11, Civ. P. C. This is what the Full Bench held in 'Murtiraju v. Sub-baraju', ILR (1944) Mad 626. If no such revi-sion petition is filed & the order directing payment of additional court-fee not having been complied with, is followed up by an order rejecting the plaint, then the proper remedy of the plff. is to appeal against the order rejecting the plaint. This is what Chandarshekhara Aiyar J. observed though 'obiter' in 'Ratnavelu Pillai v. Varadaraja Pillai', 1942-1 M.L.J. 569. There is no inconsistency between these two decisions. An order rejecting a plaint does not conclusively determine the rights of the parties; nor is it a formal expression of an adjudication determining the rights of any party with reference to any matter in controversy in the suit. Order 7, Rule 13, Civ. P. C. provides that the rejection of the plaint on any of the grounds mentioned in that order is no bar to a fresh suit on the same cause of action. Nevertheless, Section 2(2) enacts that an order rejecting a plaint under Order 7 Rule 12, Civ. P.C. shall be deemed to be a decree, apparently because the rejection of the plaint conclusively determines that the plff. is not entitled to bring his suit on a court-fee stamp of a value less than what has been found by the court, & to this extent there is a final decision. An appeal lies against an order rejecting the plaint, but not against an order demanding payment of additional court fee. The latter order is open only to a revision. If no revision petition has been filed against the order demanding additional Court-fee before the plaint is rejected for non-compliance with it, the remedy of the plff. is to appeal against the order rejecting the plaint. It is for this reason that Order 7, Rule 12 requires the court to pass a formal order rejecting the plaint giving the reasons for its conclusion. Though neither the order calling for payment of additional court-fee, nor the order rejecting the plaint for non-compliance with the order determines the rights of the parties, the Civil Procedure Code prescribes different remedies in the two cases, in the former case by a revision petition to this Court & in the latter case by an appeal to that Court to which an appeal from the decree passed in the suit would have been preferred. I therefore agree that the remedy of the plff. in this case was to have appealed against the order rejecting the plaint.

Panchapakesa Ayyar, J.

5. I agree with the observations of my Lord the Chief Justice ft Viswanatha Sastri J. In my opinion, any arty who is aggrieved by an order calling for an additional court fee should at once take a copy of that order & file a revision petition to this court, & get a stay, if he does not want to pay the additional court fee & only wants time to file a revision petition. If he waits till the time granted for paying the additional court fee expires & the plaint is rejected, & does not even request the court before the plaint is rejected to grant him time for getting copies to file a revision petition, in which case the court will certainly grant a reasonable time, he cannot afterwards file a revision petition as his remedy then is only an appeal. In this case, it seems to me that the petitioners hoped to pay the additional court-fee, &, having failed to collect the amount & pay it, allowed the plaint also to be rejected, &, then, as an after thought, filed this revision petition which accordingly deserves to be rejected.


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