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2007 DIGILAW 833 (MAD)

J. Shanker v. P. Jayabal

2007-03-06

S.ASHOK KUMAR

body2007
Judgment :- Aggrieved over the order passed in I.A.No:59 of 2006 filed by the review petitioner/plaintiff, reversing the order directing the plaintiff to value the suit under Section 37(2) of the Tamil Nadu Court Fees Act and not under Section of the Court Fees Act as directed earlier in the earlier Interlocutory Application No:605 of 2005, this Revision has been filed by the 1st defendant. 2. The plaintiff/respondent has filed the suit for declaration of title of A schedule property and for consequential injunction as against the defendant and for reopening the partition deed dated 11. 2001 by effecting a fresh partition of B Schedule property by dividing into 4 equal shares and for allotting one such share to the plaintiff. As such, he valued the suit A Schedule under Section 25(b) of the Court Fees Act and for half of the market value paid a court fee of Rs.958/=. Since the plaintiff wanted to ignore the partition dated 11. 2001 as it was obtained by coercion, undue influence and fraud he did not seek for cancellation of the said partition deed and paid a court fee under Section 37(2) of the Act as far as B Schedule of property is concerned. 3. Challenging the same, the defendant filed I.A.No:605 of 2005 stating that the court fee has to be paid under Section 40 of the Act. The trial court accepting the contention of the defendant and Following the judgement of this Court reported in 2005 (4) CTC 197 , directed the plaintiff to value the suit property under Section 40 of the Court Fees Act. 4. Aggrieved over the same, the plaintiff filed Review Petition in I.A.No:59 of 2006 contending that the decision relied on by the trial court is applicable only to the suits field for cancellation of the sale deeds and would not apply with regard to a suit for partition and the suit ought to have been valued only according to the pleadings of the plaintiff and not according to the written statement filed by the defendant. The Trial Court accepting the contentions of the plaintiff reversed its earlier order and held that the suit has to be valued only under Section 37(2) of the Court Fees Act. Against the same, the present revision is filed by the defendant. 5. Mr. The Trial Court accepting the contentions of the plaintiff reversed its earlier order and held that the suit has to be valued only under Section 37(2) of the Court Fees Act. Against the same, the present revision is filed by the defendant. 5. Mr. N. Manokaran, Learned counsel for the revision petitioner/defendant contended that the trial courts power of review can be exercised only for correction of a mistake and not to substitute a view and the review cannot be treated as an appeal in disguise. Further, the power of review is not an inherent power. In exercise of the jurisdiction under Section 114 CPC, it is not permissible for a decision to be reheard and corrected as held by the Apex Court in AIR 2000 (SC) 1650 and in 1998 (1) CTC 25. 6. It is well settled law that the court fee payable on the plaint is to be decided on the very pleadings of the plaint and not even on the reliefs prayed for in the suit. In the present case a perusal of the plaint would show that the plaintiff is virtually seeking to set aside the earlier partition as not valid and not binding upon him and therefore the relief in substance indirectly amounts to seeking for the cancellation of the earlier partition. Further, as regards A-schedule of property, there is no dispute between the parties with regard to payment of court fees. The only dispute is with regard to B Schedule of property. Since the plaintiff ignores the partition deed dated 11. 2001, and he wants to reopen the partition deed by effecting a fresh partition it would affect the suit for cancellation of the earlier partition deed in which the plaintiff was also a party to the same. As such as far as B schedule of property is concerned, the plaintiff will have to pay court fee for cancellation of the earlier partition deed also. 7. This Court in 2007 (I) MLJ 696 (S. Rajasekaran Vs. K. Sargunam) again reiterated that when a party to the document challenges the same on the ground that it is forged, then the suit property has to be valued at the market Rate and court fee should be paid accordingly. This decision is squarely applicable to the facts of this case also. The decision in 2005 (5) CTC 190 (Chellakannu Vs. This decision is squarely applicable to the facts of this case also. The decision in 2005 (5) CTC 190 (Chellakannu Vs. Kolanji is also to the effect that though a prayer could be couched in the form of seeking declaration that the document is not valid and not binding, the relief in substance indirectly amounts to seeks for cancellation and therefore the Section applicable is only Section 40 of the Act. Hence, it is clear that the whether it is cancellation of sale deeds or cancellation of partition deed, it makes no difference and that too when the plaintiff is party to such instrument and when the pleadings would establish the intention of the plaintiff to cancel such instrument, only Section 40 of the Tamil Nadu Court Fee is attracted. 8. As regards the power of review by the court, learned counsel relied on a Division Bench decision of this Court in L. Jegannath and others Vs. Land Acquisition officer and RDO, Palani and others reported in 2006 (3) MLJ 196 while reiterating the very words of the Apex Court rendered in 1998(1) C.T.C. 25 (Parsion Devi Vs. Sumitra Devi) it has been held that "There is a clear distinction between an erroneous decision and an error apparent on the face of the record. While the first can be corrected by the higher forum, the latter only can be corrected by exercise of the review jurisdiction." 9. In Rajender Singh Vs. Lt. Governor, Andaman & Nicobar islands, reported in A.I.R.2006 S.C.75, in Paragraph 15 and 16, it has been held as follows: "15. We are unable to countenance the argument advanced by Learned Additional Solicitor General appearing for the respondents. A careful perusal of the impugned judgment does not deal with decide many important issues as could be seen from the grounds of review and as raised in the grounds of special leave petition/appeal. The High Court, in our opinion, is not justified in ignoring the materials on record which on proper consideration may justify the claim of the appellant. Learned counsel for the appellant has also explained to this Court as to why the appellant could not place before the Division Bench some of these documents which were not in possession of the appellant at the time of hearing of the case. Learned counsel for the appellant has also explained to this Court as to why the appellant could not place before the Division Bench some of these documents which were not in possession of the appellant at the time of hearing of the case. The High Court, in our opinion, is not correct in overlooking the documents relied on by the appellant and the respondents. In our opinion, review jurisdiction is available in the present case since the impugned judgment is a clear case of an error apparent on the face of the record and non-consideration of relevant documents. The appellant, in our opinion, has got a strong case in their favour and if the claim of the appellant in this appeal is not countenanced, the appellant will suffer immeasurable loss and injury. Law is well-settled that the power of judicial review of its own order by the High Court inheres in every Court of plenary jurisdiction to prevent mis-carriage of justice. 16. The power, in our opinion, extends to correct all errors to prevent miscarriage of justice. The Courts should not hesitate to review its own earlier order when there exists an error on the face of the record and the interest of the justice so demands in appropriate cases. The grievance of the appellant is that though several vital issues were raised and documents placed, the High Court has not considered the same in its review jurisdiction. In our opinion, the High Courts order in the revision petition is not correct which really necessitates our interference". 10. In Lilly Thomas Vs Union of India, reported in A.I.R. 2000 S.C. 1650, in Paragraph 52, it is observed as follows: "52. The dictionary meaning of the word "review" is "the act of looking, offer something again with a view to correction or improvement. It cannot be denied that the review is the creation of a statute. This Court in Patel Narshi Thakershi Vs. Pradyumansinghji Arjunsinghji, A.I.R.1970 S.C. 1273 held that the power of review is not an inherent power. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise." In Paragraph 55, it is observed as follows: "That the power of review can be exercised for correction of a mistake and not to substitute a view. It must be conferred by law either specifically or by necessary implication. The review is also not an appeal in disguise." In Paragraph 55, it is observed as follows: "That the power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The review cannot be treated an appeal in disguise. The mere possibility of two views on the subject is not a ground for review". 11. In Parison Devi Vs. Sumita Devi, reported in 1998(1) C.T.C. 25, Paragraph 9 of the judgment reads as follows: "Under Order 47, Rule 1, C.P.C. a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the Court to exercise its power of review under Order 47, Rule 1, C.P.C. In exercise of the jurisdiction under Order 47, Rule 1, C.P.C., it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered, has a limited purpose and cannot be allowed to be "an appeal in disguise". 12. In Lily Thomas V. Union of India ( AIR 2000 SC 1650 ), the Honourable Supreme Court has held that Review is also not an appeal in disguise and Review cannot be treated as an appeal in disguise. It has been further held that the power of Review can be exercised for correction of a mistake and not to substitute a view and mere possibilities of two views on the subject is not a ground for Review. In Paragraph 57 of the said judgment, it has been observed and held as follows: "It is not the case of the petitioners that they have discovered any new and important matter which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the judgment. All pleas raised before us were in fact addressed for and on behalf of the petitioners before the Bench which, after considering those pleas, passed the judgment in Sarla Mudgals case. We have also not found any mistake or error apparent on the face of the record requiring a review. Error contemplated under the rule must be such which is apparent on the face of the record and not an error which is to be fished out and searched. It must be an error of inadvertence. No such error has been pointed out by the learned counsel appearing for the parties seeking review of the judgment." 13. If we consider the case on hand, in the light of the above, we can see that in this case also it is not the case of the Review Applicants that they have discovered any new and important point which after the exercise of due diligence was not within their knowledge or could not be brought to the notice of the Court at the time of passing of the orders in the impleading petitions. As pointed out by the Honourable Supreme Court of India, error contemplated under Order 47 Rule 1 must be such which is apparent on the face of the record and not an error which is to be fished out and searched. It must be an error of inadvertence. 14. An error which is not self-evident and has to be detected by process of reasoning can hardly be said to be an error apparent on the face of the record, justifying the Court to exercise the power of review under Order 47 Rule 1 of C.P.C. In my considered view, in exercise of jurisdiction under Order 47 Rule 1 C.P.C, it is not permissible for an erroneous decision to be reheard and corrected. In this case, there is no error of inadvertence. No such error has been pointed out for seeking review. All the pleas raised in this review petition were in fact raised before the same trial court at the time of hearing of I.A.No:605 of 2005 itself and therefore the trial court ought not to have entertained the Review Petition. In this case, there is no error of inadvertence. No such error has been pointed out for seeking review. All the pleas raised in this review petition were in fact raised before the same trial court at the time of hearing of I.A.No:605 of 2005 itself and therefore the trial court ought not to have entertained the Review Petition. It is not the case of the plaintiff that he has discovered any new and important matter which after the exercise of due diligence was not within his knowledge or could not be brought to the notice of the court at the time of passing the order in the earlier I.A.No:605 of 2005. The only ground that the decision of the Apex Court has to be given more weightage than the decision of the High Court, on which, the trial court reversed its earlier order cannot be sustained for the reasons and legal proposition culled out above. 15. In the decision of the Apex Court in BCCI Vs. Netaji Cricket Club (2005) 4 SCC 741 , relied on by Mr. M.M. Sundaresh, learned counsel for the respondent/plaintiff with regard to power of review, Their Lordships of the Apex Court held as follows:- "Section 114 empowers a court to review its order if the conditions precedent laid down therein are satisfied. The substantive provision of law does not prescribe any limitation on the power of the court except those which are expressly provided in Section 114 CPC in terms whereof it is empowered to make such order as it thinks fit. Further, Order 47 Rule 1 CPC provides for filing an application for review. Such an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on a account of some mistake or for any other sufficient reason. What would constitute sufficient reason would depend on the facts and circumstances of the case. The words "sufficient reason" in Order 47 Rule 1 CPC are wide enough to include a misconception of fact or law by a court or even an advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit". 16. The words "sufficient reason" in Order 47 Rule 1 CPC are wide enough to include a misconception of fact or law by a court or even an advocate. An application for review may be necessitated by way of invoking the doctrine "actus curiae neminem gravabit". 16. In the above decision also their Lordships of the Apex Court have only held that an application for review would be maintainable not only upon discovery of a new and important piece of evidence or when there exists an error apparent on the face of the record but also if the same is necessitated on account of some mistake or for any other sufficient reason which would include a misconception of fact or law by a court or even an advocate. Here, such is not the case and therefore the case on hand is clearly distinguishable. 17. As regards payment of court fee also, the decision relied upon by Mr. M.M. Sundaresh, learned counsel for the respondent in 2005 (4) CTC 197 (Chellakannu Vs. Kolanji) is not supporting his contention, rather it is against his case. In the said decision, R. Banumanithi, J., though held that in a partition suit allegation made in the plaint alone would be considered and the pleadings made in the written statement cannot be considered for such determination, however held that such pleas cannot be extended to suits where the plaint is astutely drafted and prayer is couched. Therefore, suit for cancellation of document would come under purview of Section 40 of the Tamil Nadu Court Fees and Suits Valuation Act. The decision reported in 1998(2) LW 152 (Ramachandran Vs. Munisamy and 6 others, relied on by the learned counsel is also not applicable since astuteness is employed by the plaintiff to evade payment of proper court fee. 18. For the reasons stated above, the Revision Petition is allowed. Consequently, connected MP is closed. No costs.