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2002 DIGILAW 676 (KAR)

Kariyavva v. Bhimappa Basappa Beerannavar

2002-10-31

R.GURURAJAN

body2002
ORDER R. Gururajan, J.--Petitioners/Plaintiffs are before me challenging the order dated 21.12.2000 passed in O.S. No. 171 of 1997 on the file of the Principal Civil Judge (Sr. Dn.), Bagalkot. 2. Petitioner/Plaintiff filed O.S. No. 171 of 1997 claiming partition and separate possession of 3/8th share in agricultural land. They also prayed for awarding 3/8th share in respect of the compensation amount awarded to the suit lands. IA. No. IV was filed seeking for temporary injunction against the Defendants in the matter of compensation. Learned Trial Judge on 21.12.2001 suo-motu raised the question of Court fee and even without hearing has chosen to pass an Order, ordering payment of Court fee. The said Order is dated 17.1.2002. Petitioner filed CRP 443/2002 on 5.3.2002. The matter was listed on 6.6.2002. It was adjourned to 4.7.2002. The matter was taken up on 4.7.2002. Learned Counsel would say that the learned Judge has chosen to dismiss the suit on 4.3.2002 in the light of non-payment of Court fee. He has stated that once the Order ordering payment of Court fee is held to be bad in law, the subsequent Order of dismissal is also to be set aside by this Court. Notice was issued to Respondents but they have remained unrepresented. 3. Heard the learned Counsel for the parties. 4. Learned Counsel states that the learned Judge is not right in ordering Court fee without there being any application and without hearing the parties. He finds fault with the Order dated 21.12.2001. He states that this petition was filed on 5.3.2002. It appears that on 4.3.2002, the suit was dismissed. 5. Material facts reveal that the learned Judge without giving sufficient opportunity and without discussion and on his own has chosen to order payment of Court fee in the case on hand. In similar circumstances, I have set aside similar orders passed by the same Court. The only difference between this case and the other cases is that in the case on hand, the learned Judge has dismissed the suit on the ground of non-payment of Court fee. Let me see as to whether this Court can exercise revisional jurisdiction in these circumstances. Section 115 of the Code of Civil Procedure reads as under; 115. The only difference between this case and the other cases is that in the case on hand, the learned Judge has dismissed the suit on the ground of non-payment of Court fee. Let me see as to whether this Court can exercise revisional jurisdiction in these circumstances. Section 115 of the Code of Civil Procedure reads as under; 115. Revision.-(1) The High Court may call for the record of any case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears- (a) To have exercised a jurisdiction not vested in it by law; or (b) To have failed to exercise a jurisdiction so vested, or (c) To have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such Order in the case as it thinks fit. 6. The Madras High Court as early as in the year 1924 has held in the case of V. Manickam Pillai v. Mahudam Bathummal and Ors. 24 MLJR 152 has ruled as under; When an Order is passed wholly without jurisdiction, this Court is bound to interfere and not allow it to remain in force. A party who goes to law is entitled to insist that the law shall be followed and that an order not in accordance with law shall not be allowed to be in force. It is urged in this case, by the Plaintiff that, as the Petitioner did not apply for any stay of trial, while his revision petition was pending, the trial actually went on and that she has obtained a decree for Rs.4,000/- which decree is now pending appeal in this Court and I am urged not to interfere in revision, when there has been in fact a trial of the case on the merits between the parties, I feel the weight of this contention; but I am of the opinion that it cannot balance the weight of the other principle already cited, namely that an order passed without jurisdiction, cannot be allowed to remain in force. I must therefore set aside the order of the lower Court, as passed without jurisdiction, and the dismissal of the suit for default therefore remains. 7. I must therefore set aside the order of the lower Court, as passed without jurisdiction, and the dismissal of the suit for default therefore remains. 7. In the light of the ruling of the Supreme Court and in the absence of application of mind, I deem it proper to set aside the order dated 17.1.2002. Once the Order dated 17.1.2002 is set aside, the subsequent dismissal of the suit on 4.3.2002 is also to be set aside. In the result, this petition is allowed. The impugned orders are set aside. The matter is remitted back to the learned Trial Judge. Learned Trial Judge is directed to hear the parties and pass orders in accordance with.