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Hira Vs. B.D. Kashyap and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 30 of 1955
Judge
Reported inAIR1956HP38
ActsCourt-fees Act, 1870 - Sections 1A and 26; ;Code of Civil Procedure (CPC) , 1908 - Section 115
AppellantHira
RespondentB.D. Kashyap and anr.
Advocates: Sardar Pratap Singh, Adv.
DispositionPetition rejected
Cases ReferredLall Ram v. Nareshchand
Excerpt:
- .....court in--'mandir shri deota jakh v. sheshi ram', air 1955 him pra 5(a):'under proviso (ii) to para. 35, himachal pradesh (courts) order, no revision petition, as contemplated in paragraph 35 (1) (b) can be admitted in a small cause suit under the value of rs. 1,000/-. the expression 'small cause suit' has been defined in para. 2(v) of the order as a suit of the nature cognizable by a court of small causes under the provincial small cause courts act. while under sub-para, (b) the court could act on an application, it would act suo motu under sub-para, (a). there is nothing to prevent an aggrieved party from inviting attention of the high court to a case covered by sub-para, (a) e.g., where a) civil court has exercised a jurisdiction not vested in it by law, or, has failed to exercise.....
Judgment:

1. This revision petition by a defendant arises out of a suit for the recovery of Rs. 470/on the basis of an agreement. Having regard to the proviso (ii) to para. 35, Himachal Pradesh (Courts) Order, the revision petition is incompetent.

2. Learned counsel for the petitioner urged that this may then be treated as a revision petition under para. 35(1) (a), Himachal Pradesh (Courts); Order. As was pointed out by this Court in--'Mandir Shri Deota Jakh v. Sheshi Ram', AIR 1955 Him Pra 5(A):

'Under proviso (ii) to para. 35, Himachal Pradesh (Courts) Order, no revision petition, as contemplated in paragraph 35 (1) (b) can be admitted in a small cause suit under the value of Rs. 1,000/-. The expression 'small cause suit' has been defined in para. 2(v) of the Order as a suit of the nature cognizable by a Court of small causes under the Provincial Small Cause Courts Act.

While under sub-para, (b) the Court could act on an application, it would act suo motu under sub-para, (a).

There is nothing to prevent an aggrieved party from inviting attention of the High Court to a case covered by sub-para, (a) e.g., where a) civil Court has exercised a jurisdiction not vested in it by law, or, has failed to exercise such jurisdiction vested in it by law or, while exercising such jurisdiction has acted with material irregularity.'

Learned counsel was then called upon to show how it could be said that the Courts below have acted in the exercise of their jurisdiction with material irregularity. Thereupon, learned counsel urged that there was no valid plaint before the trial Court. He elucidated this point by stating that the plaint was originally instituted in the Court of the Judge, Small Cause Court, Simla (Punjab), with court-fee stamps pertaining to the Punjab Government. The plaint was subsequently returned for presentation to a Himachal Court. It was then presented to the Subordinate Judge of Theog and decreed by him in due course. Learned counsel contended that the Subordinate Judge of Theog could not proceed with the suit, because the plaint bore Punjab stamps and not Himachal stamps, the latter stamps alone being stamps of the 'appropriate Government' within the meaning of Sections 1A and 26, Court-fees Act, Prom a perusal of the judgment of the District Judge, it would appear that, on the authority of--'Sarabhamma v. Peda Veeranna', AIR 1950 Mad 57 (B), the trial Court overruled the objection on the point of court-fees. The lower appellate Court has referred to a string of authorities, including--'Visweswara Sarma v. T. M. Nair', 35 Mad 567 (PB) (C);--'Prabhakarbhat v. Vishwambhar', 3 Bom 313 (FB) (D);--'Ganesh Tavanappa Burde v. Tatya Bharmappa', AIR 1927 Bom 257 (E) and AIR 1950 Mad 57 (B). In the first mentioned ruling, namely, 35 Mad 567 (PB) (C), a Pull Bench of the Madras High Court observed as follows:

'A plaintiff, who had acted bona fide, should not be in worse position because the Court did not find out its want of jurisdiction before the stamps were cancelled, and, as the rule for the return of plaints makes no distinction between cases where the plaintiff has acted bona fide and cases where he has acted otherwise, the same principle is clearly meant to apply in all cases'

In 8 Bom 313 (PB) (D), West J, remarked that:

'Where a court fee on the institution of a suit has been paid in a Court which cannot possibly afford the relief sought, it does not seemconsistent with sound principle that the plaintiff, should be condemned to lose the fee thus paid or that he should not be allowed to ask, without, paying a second fee, for an adjudication from a Court which can really give one.'

In AIR 1927 Bom 257 (E), Pawcett and Patkar JJ. held that:

'Where a plaint is returned for presentation to the proper Court, the plaintiff can take advantage of the court fees that are paid on the previously filed plaint and he can pay the deficient court fees in the Court having jurisdiction to hear the case.'

While in AIR 1950 Mad 57 (B), a single Judge of that High Court, following 35 Mad 567 (PB) (C), held that:

'Where a Court after receiving a plaint and cancelling the stamp affixed thereto returns the plaint for presentation to the proper Court under order 7, rule 10, the latter Court, to which the plaint is presented, is bound to give credit for the fee already levied by the former Court'.

3. In the present case, it so happens that. Theog and Simla are situated in two different States. Learned counsel for the petitioner was unable to cite any case, reported or otherwise, of fresh court fees haying been demanded, following the presentation of a plaint to a Court situated in a State, other than that in which, the Court, which returned the plaint was situated. The learned District Judge has referred to letter No. R86 62/53 from the Assistant Secretary (Revenue), Himachal Pradesh Government, to all Deputy Commissioners, of July 1953 (copy endorsed to this Court on 20-7-1953). A perusal of that letter would show that court-fee and non-judicial stamps, purchased from certain States other than Himachal Pradesh, were being used on documents presented to certain Courts in Himachal Pradesh. The plaint, in the present case, was presented? to the Subordinate Judge, Theog, on 6-9-1951, about two years prior to the issue of the above-letter. I should not be understood as laying, down any universal rule.

But, so far as the present case is concerned, having regard to its peculiar circumstances and the practice which was in vogue in this State prior to July 1953 (as disclosed by the letter of the Assistant Secretary (Revenue) referred, to earlier), I feel that the learned District Judge was not unjustified in extending the equitable principles upheld in the four rulings, cited in the earlier portion of this judgment, in favour of the plaintiff. Therefore, the contention regarding court-fee fails.

4. It was further suggested by learned counsel that the sum demanded by the plaintiff! was exorbitant, since he appeared only on two hearings and the suit, was dismissed in default. It is, however, unnecessary to go into this question because the plaintiff came to Court on the basis of an agreement which has been Upheld) by the two Courts below. Suffice it to say that there has been no failure of jurisdiction, nor can, it be said that the Courts below acted, in the exercise of their jurisdiction, with material irregularity.

Even if we assume that on the point of agreement the decision of the Courts below was erroneous, even then it cannot be said that they have acted, in the exercise of their jurisdiction with material irregularity. In this connection please see an earlier ruling of this Court, reported in--'Lall Ram v. Nareshchand', AIR 1953 Him P & Bilas 28 (P); where my learned predecessor remarked as follows :

'The arriving at a conclusion or decision isa mental operation and the Court cannot be said to be acting in so coming to a conclusion.or decision on a question of law or of fact; and so far as arriving at a conclusion or decision is concerned, whether the lower appellate Court decides questions rightly or wrongly, it has jurisdiction to do so, and even if it decides wrongly, it cannot be said to have acted with material irregularity in the exercise of its jurisdiction.'

5. In view of all that has been said above,the revision petition fails and is rejected.


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