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2009 DIGILAW 795 (KER)

Saraswathy Amma v. Chandrasekharan Nair

2009-08-21

S.S.SATHEESACHANDRAN

body2009
Judgment : The writ petition is filed seeking the following reliefs: "i) To issue writ of certiorari or any other of order or direction calling for the records leading to Ext.P4, P4(A) and P5 and quash the same. ii) To set aside the order P5 dated 5.6.2009 and restore the suit O.S.No.128/2008 before the Hon'ble Munsiff Court, Ettumanoor. iii) To declare that the above suit property is properly valued and proper court fee was paid and this suit is below the pecuniary limits of the Hon'ble Munsiff Court. iv) To issue a direction to commence the evidence of O.S.No.128/2008 before the Hon'ble Munsiff Court, Ettumanoor and dispose of the suit expeditiously." 2. Petitioners are the plaintiffs in O.S.No.128 of 2008 on the file of the Munsiff Court, Ettumanoor. Suit is one for partition and the respondent, the defendant. Defendant in his written statement among other contentions had impeached the valuation of the properties covered by the suit and also the court fee paid under Section 37(2) of the Kerala Court Fees and Suits Valuation Act, hereinafter referred to as the Court Fees Act, as not reflecting the market value of the properties. An issue raised on the basis of the above contention as to whether the suit is maintainable, as issue No.5, on an interlocutory application moved by the defendant as I.A.No.1085 of 2008 was considered as a preliminary issue and disposed by order dated 17.1.2009 holding that the suit is maintainable. Suit was listed to commence trial on 3.6.2009. The defendant thereupon moved an application for reviewing the earlier order dated 17.1.2009 passed in I.A.No.1085 of 2008 with a petition to condone delay of 129 days, contending the question whether the court has pecuniary jurisdiction to entertain the suit has to be considered with reference to the challenge raised that the suit properties has not been properly valued with reference to its market value and if proper valuation is made, the Munsiff Court will not have pecuniary jurisdiction to entertain the suit. Learned Munsiff, after hearing both sides, after condoning the delay, allowed the review petition and passed orders afresh in I.A.No 1085 of 2008. Learned Munsiff, after hearing both sides, after condoning the delay, allowed the review petition and passed orders afresh in I.A.No 1085 of 2008. By order dated 5.6.2009 accepting the contentions raised by the defendant that the valuation made is incorrect and on a proper valuation with reference to the market value, Munsiff Court has no jurisdiction to entertain the suit, the learned Munsiff ordered for returning the plaint to the plaintiffs directing them to file an application under Order VII Rule 10(a) CPC within one week. P4 is the copy of the order passed by the learned Munsiff allowing the petition to condone the delay in moving the review petition. Ext.P4(a) is the copy of the order allowing the review petition and Ext.P5, the copy of the revised order passed in I.A.No.1085 of 2008 dated 5.6.2009. Propriety and correctness of the above orders are challenged by the petitioners/ plaintiffs in this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India. 3. Notice being given respondent/defendant has entered appearance. I heard the learned counsel on both sides. 4. A preliminary objection was raised by the learned counsel for the respondent that the orders impugned are appealable and as such a writ petition invoking the visitoral jurisdiction under Article 227 of the constitution will not lie against the order under Ext.P4(a) reviewing the previous order passed in I.A.No.513 of 2009 by the learned Munsiff under Order XLVII CPC. As provided under Order XLIII Rule 1(w) of the Code P4 order condoning the delay in entertaining the review petition can also be challenged in the appeal against P4(a)order allowing the review petition, submits the counsel. Further submission of the learned counsel is that Ext.P5 order by which the plaint was ordered to be returned under Order VII Rule 10 CPC is also appealable under Order XLIII Rule 1(a) CPC. When an alternate efficacious remedy by way of appeal is provided under the Code of Civil Procedure to challenge the impugned orders, the challenge raised against such orders invoking the supervisory jurisdiction of the Court is not entertainable, is the submission of the learned counsel. 5. Preliminary objection raised by the learned counsel for the respondent deserve to be examined after adverting to the undisputed facts leading to the passing of the impugned orders, Ext.P4, P4(A) and P5 challenged in the writ petition. 5. Preliminary objection raised by the learned counsel for the respondent deserve to be examined after adverting to the undisputed facts leading to the passing of the impugned orders, Ext.P4, P4(A) and P5 challenged in the writ petition. The first plaintiff is the mother of the respondent and the other plaintiffs are the windowed daughter-in-law and children of a predeceased son of the plaintiff. Suit claim for partition by the plaintiffs, was resisted on various contentions presented in the written statement of the respondent/defendant in which valuation of the suit properties was challenged as not correct and court fees paid as inadequate. On the contention so raised, an issue regarding the maintainability of the suit as additional issue No.5 was settled among other issue in the suit. That issue was preliminarily considered by the court and a finding was entered that the suit is maintainable. With the counter affidavit filed by the respondent a copy of the previous order passed by the court in I.A.No.1085 of 2008 dated 17.1.2009 had been produced and that is Ext.R1(a). Perusal of R1(a) shows that the learned Munsiff repelled the contention of the defendant that the suit was not properly valued and court fee paid was inadequate. Learned Munsiff found the suit maintainable holding that the court fee paid as per Section 37(2) of the Court Fees Act is sufficient and there is no deficiency in payment of court fee. An observation was seen made in Ext.R1(a) that even if it is found during the trial that no sufficient court fee was paid by the plaintiff there is provision for realization of balance court fee from the plaintiffs. After the case was included in the special list for trial, the defendant moved an application for review of R1(a) order contending that the court fee paid is sufficient. The suit ought to have been filed under Section 37(1) of the Court Fees Act and if so valued with reference to the market value of the property, the share of the plaintiffs would come to Rs.4,46,,832/-,was the case advanced by the defendant. Raising such a case respondent/defendant challenged the maintainability of the suit contending that the subject matter is beyond the jurisdiction of the court. Ext.P3 is the copy of the review petition filed by the plaintiffs. Raising such a case respondent/defendant challenged the maintainability of the suit contending that the subject matter is beyond the jurisdiction of the court. Ext.P3 is the copy of the review petition filed by the plaintiffs. The learned Munsiff condoning the delay allowed the review petition and set aside the previous order passed in I.A.No.1085 of 2008. Fresh orders were passed in I.A.No.1085 of 2008 holding that valuation of the suit properties should be made under section 7(3)(a) of the Court fees Act as the valuation in the suit calls for determination with reference to Section 53 of the above Act and, then, examining the valuation shown in one of the documents executed by the first plaintiff in favour of the fourth plaintiff with respect to one of the items covered by the suit, the learned Munsiff entered a finding that by itself would indicate that the valuation made in the suit and court fee paid are grossly inadequate and on a correct valuation, the market value of the share claimed by the plaintiff would far exceed the pecuniary jurisdiction of the Munsiff Court. In arriving at such view Ext.P5 order was passed to return the plaint under Order VII Rule 10 CPC directing the plaintiff to make an application under Order VII Rule 10(a) CPC. 6. Now the preliminary objections raised by the learned counsel for the respondent/defendant deserve to be examined. I find no merit in the objections raised by the learned counsel that P4(a) order passed by the learned Munsiff reviewing the previous order dated 17.1.2009 passed in I.A.No.1085 of 2008 is amenable to an appeal under Order XLIII Rule 1(w) CPC. Order XLVII Rule 1 contemplates application for review of a judgment, which no doubt, is applicable in the case of reviewing of order as well. However, an appeal against any order allowing review as envisaged under Order XLVII Rule 7 CPC is entertainable only if the order passed on the review application has redetermined the rights of the parties modifying the earlier order. An order reviewing an earlier order, subsequently reviewed, must involve the determination of some right or liability though it may not be necessary that there must be a decision on merit. An order reviewing an earlier order, subsequently reviewed, must involve the determination of some right or liability though it may not be necessary that there must be a decision on merit. Review application revising a previous order of the court from which no appeal is provided by the Code cannot be challenged by way of an appeal invoking Order XLVII rule 7 of CPC. What are the orders from which an appeal could be preferred is covered by Section 104 of the Code of Civil Procedure. Where no appeal is provided as against the previous order passed by the court it is fallacious to contend that on review of that order for whatever reasons be, an appeal will lie under Order XLIII Rule 1(w) of CPC. So much so, the objections raised that P4 and P4(a) are amenable to appeal under Order XLIII Rule 1(w) CPC have no merit, and deserve to be taken note only for its rejection. 7. The objections raised that P5 order passed by the learned Munsiff after review of the previous order, for returning of the plaint under Order XLVII Rules 10 CPC is amenable to appeal under Order XLIII Rule 1(a), require to be analysed with reference to the jurisdiction of the learned Munsiff to review the previous order dated 17.1.2009 in I.A.No.1085 of 2009. In this context, a reference to Section 12(2) of the Court Fees Act assumes much significance. Sub section (2) of Section 12 of the Court Fees Act clearly spells out where the defendant in this written statement 'pleads' that the subject matter of the suit has not been properly valued or court fee paid is not sufficient, the court should decide the matter as a preliminary issue. Once a decision is entered thereof by the court it will be binding on that court unless a fresh decision is asked for by the court fee examiner under Section 18 of the Court Fees Act. Once the question of valuation and sufficiency of court fee is determined by the court it will be binding on that court and it has no power to review the earlier decision except on the basis of a report from a court fee examiner and enquiry thereunder. Once the question of valuation and sufficiency of court fee is determined by the court it will be binding on that court and it has no power to review the earlier decision except on the basis of a report from a court fee examiner and enquiry thereunder. Though a decision taken under Section12 (1) of the Court Fees Act is open to further enquiry, no decision taken Section 12(2) and 12(3) can be reviewed by that court suo motu or otherwise. The question of correctness of valuation and adequacy of court fee, after a decision is taken under Section 12(2) by the court is binding on that court and it can be reconsidered only by the appellate court under Section 12(4) of the Court Fees Act. The position has been clarified beyond any doubt by the judicial pronouncement rendered by this Court in Joseph v. Sara Thomas (1996(2) KLT 851). When that be so, the learned Munsiff by passing Ext.P5 order in reviewing the previous order passed in I.A.No.1085 of 2008 has acted not only without jurisdiction but flagrantly violating the mandate under Section 12(2) of the Court Fees Act, Further more, it is noticed, no question of improper valuation of a suit or insufficiency of court fee can be raised after the stage of recording evidence. Suit, admittedly, was included in the special list for trial and it was at that stage the defendant moved a review application with a petition to condone delay to reconsider the earlier decision rendered by the court under R1(a) that the valuation made and court fee paid is sufficient, answering issue No.5 raised in the suit in favour of the plaintiffs holding that the suit is maintainable. After the suit entered the stage of recording evidence, the court cannot take up the question as to the improper valuation of the suit or insufficiency of court fee is amply demonstrated by the provisions of Section 12 of the Court Fees Act, and it has been so held by this Court leaving no room for taking a different view in we Build - Pvt Ltd. v. C. Kamaleswaran (1981 KLT 773). Learned Munsiff without noticing the binding principles applicable in considering the question of improper valuation and sufficiency of court fee when challenges thereto are raised by the defendant resisting the suit claim has passed Ext.P5 order which is patently erroneous and legally unsustainable. Learned Munsiff without noticing the binding principles applicable in considering the question of improper valuation and sufficiency of court fee when challenges thereto are raised by the defendant resisting the suit claim has passed Ext.P5 order which is patently erroneous and legally unsustainable. Where the court had no power to review the previous order passed under Ext.R1(a), the decision formed after enquiry under Section 12(2) of the Act earlier, needless to point out Ext.P5 order passed by the learned Munsiff was one crossing the limits of jurisdiction and acting in flagrant disregard of law and the rules of procedures. When that be so, the objections raised by the learned counsel for the respondent that an appeal is provided against P5 order under Order XLIII Rule 1 (a) CPC will not in any way ensure to the respondent/defendant to resist his Court from exercising its supervisory jurisdiction under Article 227 of the Constitution of India where it is shown that P5 order is patently illegal and if that is order is not set aside grave injustice or gross failure of justice would be caused. I need not advert to the reasons set out in P5 order by the learned Munsiff to hold that the valuation of the suit properties is far beyond the pecuniary jurisdiction of that court as an enquiry thereof after a decision rendered earlier under Section 12(2) of the Court Fees Act was not open. Impugned order, P4, P4(a) and P5 are liable to be set aside and I do so. 8. At the time of admitting the writ petition it was reported that the plaint returned by the learned Munsiff on the basis of Ext.P5 order was refused to be received on the file of the Sub Court, since no amendment, showing its entertainability before the superior court, had been carried out before returning it from the Munsiff Court. Taking note of the above submissions of the learned counsel for petitioners/plaintiffs I had directed to return the plaint to the Munsiff Court the orders to that court to receive it and retain the same subject to decision in the writ petition. Taking note of the above submissions of the learned counsel for petitioners/plaintiffs I had directed to return the plaint to the Munsiff Court the orders to that court to receive it and retain the same subject to decision in the writ petition. The orders passed by the learned Munsiff having been revoked, I make it clear that all orders passed by the learned Munsiff pursuant to Ext.P5 order also shall stand revoked and the suit shall continue on the file of his court as prior to the passing of P5 order. The learned Munsiff is directed to proceed with the recording of evidence in the case and dispose it on merits, as expeditiously as possible, within a period of two months from the date of receipt of a copy of this judgment. The writ petition is allowed.