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2005 DIGILAW 252 (JHR)

Atul Mahto v. Jhunkibala Mahatawain

2005-03-30

N.N.TIWARI

body2005
ORDER N.N. Tiwari, J. 1. This Civil Revision application is against the judgment and order passed in Civil Misc. Appeal No. 3 of 1999/3 of 2004 by 2nd Additional District. Judge (FTC), Jamtara whereby the Court below has dismissed the appeal affirming the judgment and order passed by Subordinate Judge II, Jamtara in Title Suit No. 45 of 1983, whereby the plaintiffs plaint has been returned. 2. The plaintiffs case is that he filed Title Suit No. 45 of 1983 in the Court of Subordinate Court, Jamtara praying relief for declaration of right, title and for recovery of possession of the land of plot No. 230 of Mauza-Daur. The plaintiff had further prayed for a decree for partition of half share in the said land. The suit was valued at Rs. 550./- 3. On receiving summons the defendant appeared and filed written statement taking grounds, inter alia, that the plaint was over-valued and the Court has no pecuniary jurisdiction and that the suit was not maintainable. 4. After closing the evidences of the parties at the concluding stage and after about 16 years of institution of the suit, defendant filed an application seeking decision on the issue of jurisdiction in view of the over-valuation of the suit as a preliminary issue. According to them, the suit should have been valued at Rs. 500/-only whereas it was valued at Rs. 550/-. 5. Rejoinder to the said petition was filed by the plaintiff and after hearing the parties the Trial Court by order dated 2.9.1996 rejected the said application holding that the same as not maintainable. The said order was not challenged by the defendant at any stage. Again another petition dated 12.1.1999 was filed by the defendant praying for disposal of the suit on the preliminary issues and for an order to return the plaint. The plaintiff filed rejoinder to the said petition. 6. Learned Subordinate Judge II, Jamtara by order dated 27.2.1999, ignoring the earlier order passed by his predecessor dated 2.9.1996 though the same was brought to his notice, allowed the defendants petition and passed order for returning the plaint to the plaintiff for filing the same in proper Court of law. Against the said order the plaintiff filed Civil Misc. 6. Learned Subordinate Judge II, Jamtara by order dated 27.2.1999, ignoring the earlier order passed by his predecessor dated 2.9.1996 though the same was brought to his notice, allowed the defendants petition and passed order for returning the plaint to the plaintiff for filing the same in proper Court of law. Against the said order the plaintiff filed Civil Misc. Appeal No. 3 of 1999/3 of 2004 and in the appellate Court plaintiff-petitioner has again taken the point that the same issue has already been decided as far back as on 2.9.1996 and was not challenged and became final and binding on the parties and assailed the order of the Trial Court on the said ground and other grounds. 7. By the impugned judgment dated 12.4.2004, learned 2nd Additional District Judge (FTC), Jamtara upheld the order and dismissed the appeal. 8. Mr. J.P. Jha, learned senior counsel appearing on behalf of the plaintiff- petitioner assailed the said judgment/order mainly on the ground that controversy was already decided by order dated 2.9.1996 and thereafter the said order was not challenged and became final and the Trial Court has no jurisdiction to sit over the said order and pass any contrary order for returning the plaint to the petitioner and that too after full-fledged trial of the suit at the concluding stage and after about 16 years of the institution of the suit. Learned counsel further submitted that lower appellate Court has committed serious error of law in upholding and affirming the said illegal order. According to learned counsel, both the orders are wholly illegal and there has been no proper and legal exercise of jurisdiction by the Courts below in passing the said judgment/order. 9. Mr. K.K. Singh, learned counsel appearing on behalf of the opposite parties, on the other hand, submitted that the Court can return the plaint at any stage if it comes to the notice of the Court that it has no jurisdiction and the said plaint being over valued has been rightly returned by the Court. Learned counsel further submitted that though adverse order already passed was in existence, yet it was reviewed and the Court has jurisdiction to review its illegal order. Learned counsel further submitted that though adverse order already passed was in existence, yet it was reviewed and the Court has jurisdiction to review its illegal order. Learned counsel submitted that there is no infirmity in the judgment and order of the Courts below and by the impugned judgment/order and the plaint has been only returned, it is not the final order and the plaintiff, subject to limitation, can file another suit. Learned counsel submitted that the order impugned does not come within the ambit of Section 115 of the Code of Civil Procedure. In support of his submission learned counsel relied upon a decision of the Supreme Court in Shiv Shakti Coop. Housing Society v. Swaraj Developers and Ors. reported in (2003) 6 SCC 659 . 10. Having considered the submission made by the parties and perused the impugned order/judgment, I find that by order dated 2.9.1996, the Trial Court after hearing both the parties had rejected the defendants petition challenging maintainability on the ground of over-valuation of the plaint and the prayer for returning the plaint. Defendant thereafter never challenged the said order rather took part in the proceeding of the suit. Thereafter there was a long drawn trial of the suit. Evidences were adduced and it was on the concluding stage when the second and subsequent petition was filed and with the same prayer for returning the plaint on the ground of over-valuation of the suit. 11. In my considered opinion when the same issue/controversy has been decided on contest after hearing both the parties at one stage and if the order was not further challenged, the order becomes final and binding on the parties and any subsequent petition raising the same issue is barred by the principle of res judicata. It is well settled that principle of res judicata is not only applicable in the subsequent suit but also at the different stages of the same suit and if the same issue is decided at one stage of the suit, the same cannot be raised over again at the subsequent stage. In this case the earlier order was not challenged by the defendant and they also took part in the trial/proceeding of the suit. In this case the earlier order was not challenged by the defendant and they also took part in the trial/proceeding of the suit. The evidences were adduced and the suit was at the verge of conclusion when second and subsequent petition was filed challenging the jurisdiction of the Court and the maintainability of the suit on the point of pecuniary jurisdiction. It is well settled that once the parties submitted to the jurisdiction of the Court and took part in the trial, the same cannot be challenged subsequently after taking part in the same. The issue of maintainability of the suit on the ground of over valuation has been taken the second time and that too after about 16 years of the institution of the suit. In my view, the Court once having decided the issue cannot subsequently decide the same and the judgment and order of the Courts below cannot sustain in law. The Court below have not exercised their jurisdiction legally and properly and the impugned judgment and order are liable to be set aside. 12. In the result this revision application is allowed and the judgment/order of the Courts below are set aside. Since the suit is of the year 1983 and the evidences have already been adduced by the parties, the Trial Court is directed to dispose of the suit on merit on all the issues involved in the suit, within a period of three months from the date of receipt/production of a copy of this order. 13. However, there shall be no order as to costs.