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A. Muhamad Ellaiyas Vs. Rahima Bee, Late a Minor by Her Husband and Guardian K.M. Abdul Lateef Sahib, Since Declared a Major - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1929Mad191; 114Ind.Cas.842; (1929)56MLJ302
AppellantA. Muhamad Ellaiyas
RespondentRahima Bee, Late a Minor by Her Husband and Guardian K.M. Abdul Lateef Sahib, Since Declared a Major
Cases ReferredIn Falkner v. Mirsa Mahomed Syed Ali
Excerpt:
- - in my opinion, the objection is well founded......the decision of the lower court is unfavourable to the plaintiff, it has been held that the high court can in revision interfere with that decision. this is the view i took in karuppanna thevar v. angammal : air1926mad678 and in venkataramani aiyar v. narayanaswami aiyar (1924) 48 m.l.j. 688. kumaraswami sastri and wallace, jj., adopted the same view in kulandaivelu nachiar v. ramaswami pandia thalavan i.l.r. (1927) mad. 664 : 55 m.l.j. 345 where the learned judges review the authorities on the point. in the present case, the question arises in a different way. the decision is not against the plaintiff, but it does not follow that it is against the defendant. as has been pointed out by the judicial committee in rachappa subrao v. shidappa venkatrao (1918) l.r. 46 ia. 24 : 43 bom......
Judgment:

Venkatasubba Rao, J.

1. The question I have to decide is, whether a Civil Revision Petition lies against the order of the Subordinate Judge holding that the plaintiff has paid on his plaint the proper Court-fee, the objection to the contrary by the defendant being overruled. The defendant complains in this petition that the order of the Lower Court regarding Court-fee is wrong, and a preliminary objection has been taken that the petition does not lie. In my opinion, the objection is well founded.

2. It is hardly necessary to state that I do not base my judgment on the ground that interlocutory orders made in a suit are not liable to be revised by the High Court. As a matter of fact, in the case of various kinds of interlocutory orders the High Court exercises its powers of revision. Where in regard to the Court-fee payable, the decision of the Lower Court is unfavourable to the plaintiff, it has been held that the High Court can in revision interfere with that decision. This is the view I took in Karuppanna Thevar v. Angammal : AIR1926Mad678 and in Venkataramani Aiyar v. Narayanaswami Aiyar (1924) 48 M.L.J. 688. Kumaraswami Sastri and Wallace, JJ., adopted the same view in Kulandaivelu Nachiar v. Ramaswami Pandia Thalavan I.L.R. (1927) Mad. 664 : 55 M.L.J. 345 where the learned Judges review the authorities on the point. In the present case, the question arises in a different way. The decision is not against the plaintiff, but it does not follow that it is against the defendant. As has been pointed out by the Judicial Committee in Rachappa Subrao v. Shidappa Venkatrao (1918) L.R. 46 IA. 24 : 43 Bom. 507 : 1918 36 M.L.J. 437.

The Court Fees Act was passed not to arm a litigant with a weapon of technicality against his opponent, hut to secure revenue for the benefit of the State (page 518).

3. Where an order in regard to Court-fee happens to be in favour of the plaintiff, it does not mean that it is against the defendant, though it may operate 'to the detriment of the revenue.' (See Section 12 of the Court Fees Act.)

4. As has been pointed out in Kulandaivelu Nachiar v. Ramasami Pandia Thalavan I.L.R. (1927) M. 664 : 1927 55 M.L.J. 345, which I have just cited, where the order is unfavourable to the plaintiff it may result in great hardship to him, and the interests of justice may demand that the High Court should at once rectify the error, without waiting till the suit is finally decided and an appeal is then filed. But if the Lower Court's order which is favourable to the plaintiff happens to be wrong, there is another remedy open, which is quite adequate, as the mistake can be corrected by the Appellate Court under Section 12 of the Court Fees Act, which uses language which is very significant. It runs thus:

But whenever any such suit comes before a Court of Appeal, Reference or Revision, if such Court considers that the said question has been wrongly decided, to the detriment of the revenue, it shall require the party by whom such fee has been paid to pay so much additional fee as would have been payable had the question been rightly decided, and the provisions of Section 10, paragraph (ii) shall apply.

5. There is very little authority on this point, but such authority as there is, supports the view I am disposed to take. In Falkner v. Mirsa Mahomed Syed Ali (1924) 29 C.W.N. 627 the learned Judges point out the difference between a case where the order is in favour of the plaintiff and where it is against him and express the view that whereas a Civil Revision Petition lies in the latter case, it does not in the former. I have come to the conclusion that the petition fails and it is dismissed with costs.


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