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Palaniswami Vs. Subbaraya Gounder - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberC.R.P. 69 of 1974
Judge
Reported inAIR1975Mad398; (1975)2MLJ165
ActsTamil Nadu Court-fees and Suits Valuation Act, 1955 - Sections 12, 12(2), 12(3), 12(4), 12(5), 18, 18(2), 25 and 40; Code of Civil Procedure (CPC) , 1908 - Order 47, Rule 1
AppellantPalaniswami
RespondentSubbaraya Gounder
Appellant AdvocateV. Narayanswami, Adv.
Respondent AdvocateN. Thyagarajan, Adv. for ;Addl. Govt. Pleader
DispositionRevision dismissed
Cases ReferredShamsher Singh v. Rajinder Prasad
Excerpt:
- - the petitioner had raised before 'he lower court the contention that the court had no jurisdiction to review the order at the instance of a creditor-defendant in view of its earlier order dated 8-10-1973, which was made after hearing the defendants as well as the plaintiff. the court below overruled this objection of the plaintiff-petitioner as well. therefore, the learned counsel for the petitioner is well founded in his contention that the petition for review at the instance of the defendant after the court fee question had been decided on his objection under section 12(2) of the court-fees act, was not maintainable......petition, the learned counsel for the plaintiff-petitioner contended that the petition for review filed by one of the creditor-defendants was not maintainable and that the order passed on it by the court below was one without jurisdiction.3. the provisions contained in section 12 of the court-fees act, which deals with the decision as to proper court fee, may be summarised as follows: in the first instance, the court in which the suit is instituted has to decide the proper court-fee payable on the plaint on the materials and allegations con-tained in the plaint and on the materials contained in the statement, if any, filed under section 10 of the act, before ordering the plaint to be registered. rut, this decision is subject to review, further review and correction in the manner.....
Judgment:
ORDER

V. Ramaswami, J.

1. This petition is filed by the plaintiff in O. S. No. 120 of 1969, on the file of the Sub Court, Erode, questioning the order of the court below directing him to pay additional court-fee. The petitioner filed the suit for partition and separate possession against his father. He impleaded certain creditors who had obtained money decrees against his father as defendants and prayed for a declaration that the debts are not binding on him. So far as the relief of declaration that the debts are not binding on him is concerned, the petitioner valued the relief under Section 25(d) at Rs. 400 and paid court fees on that basis. The creditor-defendants objected to the valuation and contended that the relief of declaration should have been valued and Court-fee paid on the amount for which the decrees were obtained. After hearing the parties, by an order dated 8-10-1973, the court below held that no additional court-fee need be paid. Subsequently, one of the creditors filed I. A. 1014 of 1973, praying for a review of the order dated 8-10-1973, on the ground that subsequent to the order, in the decision reported in Shamsher Singh v. Rajinder Prasad, : [1974]1SCR322 the Supreme Court held, in a similar matter, that court-fee is payable ad valorem on the amount for which the decrees were obtained. Accepting this contention and in view of the judgment of the Supreme Court the Court below has held that the court-fee is payable ad valorem on the amount for which the decrees were obtained, under Section 40 of the Court-fees Act. The petitioner had raised before 'he lower court the contention that the court had no jurisdiction to review the order at the instance of a creditor-defendant in view of its earlier order dated 8-10-1973, which was made after hearing the defendants as well as the plaintiff. The court below overruled this objection of the plaintiff-petitioner as well.

2. In this revision petition, the learned counsel for the plaintiff-petitioner contended that the petition for review filed by one of the creditor-defendants was not maintainable and that the order passed on it by the court below was one without jurisdiction.

3. The provisions contained in Section 12 of the Court-fees Act, which deals with the decision as to proper court fee, may be summarised as follows: In the first instance, the court in which the suit is instituted has to decide the proper court-fee payable on the plaint on the materials and allegations con-tained in the plaint and on the materials contained in the statement, if any, filed under Section 10 of the Act, before ordering the plaint to be registered. Rut, this decision is subject to review, further review and correction in the manner specified in Sub-sections (2), (3), (4) and (5) of that section. The order could be reviewed at the instance of a defendant or at the instance of a defendant who is added later on, at any time after the written statement is filed, or before evidence is recorded on the merits of the claim. The order could be further reviewed under Section 18, at the instance of the court fee examiner. The order of the court could be corrected by a court of appeal or a revisional court when the matter comes up before that court in appeal or in revision. It would thus be seen that once a defendant has raised an objection as to the valuation of the suit or the proper court fee payable, and a de-cision has been given after such enquiry, as the court deemed fit thereafter there was no power for the court to go into the question of valuation of the suit or of payment of proper court-fee thereon at the instance of a defendant. The court could have dealt with the matter only on a point raised by the Court-fee Examiner under Section 18. Even here, once the Court-fee examiner had raised a point and that was considered and decided by the court, the Order thereafter made under Section 18(2) becomes final so far as the trial court is concerned and the trial court could not review the order. The only remedy thereafter is for the appellate court or the revisional court to correct the error under Section 12(4). This was also the view expressed by this court in Janakiammal v. Ran-gachari, : (1960)2MLJ527 . The head-note in that decision which brings out the ratio correctly may be usefully quoted here:

'Ordinarily there are three stages at which a court can enquire into the question whether a plaint or appeal has been properly valued. They are (a) Before the registration of the plaint or appeal. In such cases it will be open to the court to review, correct and further review its decision in the manner specified in Section 12(1) of the Madras Court fees Act; (b) After the suit or appeal has been registered an issue on the question of court-fee can be raised by the defendant or respondent and the court should decide the matter. In such cases the decision will be binding on the court that rendered it unlesss a fresh decision is asked for by the court-fee examiner; (c) on the objection of court-fee examiners under Section 18 of the Act, when a decision has been given on the report of the court-fee examiner no further review or reconsideration is possible except by an appellate court under Section 12(4) of the Act. A decision given under Section 18(2) of the Madras Court-fees and Suits Valuation Act, 1955, will be final so far as that court is concerned. In the absence of a statutory provision expressly enabling the court to review its decision, a decision on the question of court-fee once given will be binding on the court which gave the decision at all subsequent stages.'

4. Thus the defendant had no right to file a review petition before the court below.

5. The review petition was purported to have been filed under Order XLVII Rule 1, C. P. C. It is true that an order made on a question of court fee shall be deemed to form part of the decree or final order which the court may ultimately pass on the merits in the suit itself as provided under Section 20 of the Court-fees Act. There-fore, it may be considered to be a decree or order from which no appeal is allowed within the meaning of Order XLVII Rule 1 C. P. C. But the question is, whether, though the order relating to the court fee payable may be said to be final, from which no appeal is allowed, a review could be filed under Order XLVII Rule 1 C. P. C. I am of the view that so far as the application for review by a defendant relating to a court fee matter is concerned, it is governed by the provisions of Section 12 of the Court-fees Act and he could not invoke the provisions of Order XLVII Rule 1 C. P. C. In fact, on the question of maintainability of a revision by a defendant against an order relating to court fee, the Supreme Court, in Rathnavar-maraj v. Vimla, : [1961]3SCR1015 has held that unless the question affects the jurisdiction of the court on a mere question of court fee no revision could be filed at the instance of a defendant as Section 12 of the Court-fees Act does not enable him to file one such petition. The ratio in Janakiammal v. Rangachari 1960-2 Mad LJ 527, is also to the effect that the decision is final so far as the trial court is concerned and not liable to be reviewed at the instance of the defendant. Therefore, the learned counsel for the petitioner is well founded in his contention that the petition for review at the instance of the defendant after the court fee question had been decided on his objection under Section 12(2) of the Court-fees Act, was not maintainable.

6. But that does not dispose of the question altogether. The petition for review could be treated as an intimation to the court that its earlier order is not correct in law and requires to be reconsidered, and, if the court considers that a reconsideration is called for, it can act suo motu as in the case of a question raised by the court fee examiner under Section 18 of the Court-fees Act. In this case, the court has held originally, without noticing the decision of the Supreme Court, that the plaintiff need not pay court fee on the amount for which the decrees had been obtained by the creditors against his father. The Supreme Court, in Shamsher Singh v. Rajinder Prasad, : [1974]1SCR322 has held that in such a case court-fee is payable ad valorem. When this was pointed out. In in my opinion, the court was entitled, though it had no power to review its earlier order, to take up the matter as if it had come to it under Section 18 of the Court-fees Act. In fact, the learned counsel for the petitioner could not dispute that even now if a note comes from the court fee examiner that the earlier decision requires reconsideration, the court is bound to reconsider it under Section 18. Though the learned counsel for the petitioner contended that Section 18 could be invoked on a specific note by the court fee examiner, I do not think it is necessary to restrict the scope of Section 18 to the court getting knowledge of the incorrectness of its order from the source of the court fee examiner's report. In such circumstances, it is not necessary in my opinion, for the court to call for a report from the Court-fee examiner, and then decide the issue. In view of the decision of the Supreme Court, the error in the earlier order became manifest and apparent. The court shall have power to correct such a mistake committed on the earlier occasion. There is no need for hypertechnicalities to be raised in this matter, of asking for a report from the court fee examiner in such circumstances. But in such a case the order shall be deemed to be one made only under Section 18(2) as there is no other power for the court to review and it would be final so far as the trial court is concerned and it would not be liable for further review.

7. Before parting with this case, it should also be noted that the learned counsel for the petitioner tried to distinguish the decision of the Supreme Court on the ground that the decree obtained by the creditors were against the father alone and that the son petitioner was not a party to them. But, as pointed out by the Supreme Court itself in that judgment, that fact is irrelevant, and even in such cases, the decrees have to be set aside, the court-fee is to be paid ad valorem on the amounts for which the decrees had been obtained by the creditors.

8. In the result, the civil revision petition is dismissed. The plaintiff-petitioner is given three months' time to pay the deficit court-fee, if he has not already paid it. No costs.


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