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2011 DIGILAW 2510 (RAJ)

Gafoor Khan through LRs. v. Amiruddin

2011-11-18

ARUN MISHRA, KAILASH CHANDRA JOSHI

body2011
Hon'ble MISHRA, CJ.—This revision petition has come up before this Division Bench as the Single Bench vide order dated 6.9.2007 has referred the matter to larger Bench to decide the following reference:- "...the matter may be referred to the larger Bench to decide the question as to whether the judgment in Laxman Singh's case lays down the law correctly in the matter of leviability of Court fees on revision filed against the decision of the suit filed under Section 6 of Specific Relief Act." 2. The revision petition has been preferred by defendant-petitioners being aggrieved by the judgment and decree dated 13.7.2007 passed by learned Civil Judge (Senior Division), Kapassan, District Chittorgarh in Civil Original Suit No. 7/1994, whereby the suit filed by the plaintiff-respondents under Section 6 of the Specific Relief Act was partly decreed to the extent of possession. 3. The brief facts of the case are that plaintiff-respondents instituted a suit under Section 6 of the Specific Relief Act against the defendant-petitioners in the Court of District Judge, Pratapgarh, District Chittorgarh on 14.10.1980. Due to pecuniary jurisdiction, the case was transferred to the Court of Civil Judge (Senior Division), Kapasan, District Chittorgarh on 10.1.1994. 4. The facts stated in the plaint are that the house situated in village Rashmi, District Chittorgarh is having the demarcations like that in the East there is house and cote (Nohra) of Fatehlal, in the West there is public way, in the North there is house of Amiruddin and Ajad Neelgar Musalman and in the South there is house of Mohanlal Kalal. This house before 7.5.1980 belonged to Nathu Khan S/o Ahmed Khan Mst. Roshan W/o Barkat Khan, Smt. Jamila W/o Akram Khan and Smt. Aamna D/o Nathu Khan. All these persons entered into an agreement to sell the house on 7.5.1980 and the possession of the house was handed over. Thereafter the sale deed was executed on 26.7.1980 and it was got registered on 2.8.1980. The defendant forcibly, by breaking the locks of the house, took over the possession on 28.7.1980, whereas they have no right to retain the possession over the house in dispute. It was also averred that the plaintiffs are entitled for Rs. 10/- per day for use and occupation of the house by the defendants from 27.7.1980. The defendant forcibly, by breaking the locks of the house, took over the possession on 28.7.1980, whereas they have no right to retain the possession over the house in dispute. It was also averred that the plaintiffs are entitled for Rs. 10/- per day for use and occupation of the house by the defendants from 27.7.1980. The cause of action accrued to them to institute the suit on 27.8.1980 and the plaintiffs valued the suit property at Rs. 20,000/- as per Section 28 of the Rajasthan Court Fees and Suits Valuation Act, 1961 and also valued the suit for recovery of amount of Rs. 770/- for the use and occupation of the house at the rate of Rs. 10/- per day and prayed that the suit be decreed and also for award of Rs. 10/- per day for the use of occupation of the house. The suit was instituted on 13.10.1980. 5. The defendants No. 1 to 4 filed their written statement and it was contended therein that it is admitted that the house as mentioned in para No. 1 of the plaint is there but it was denied that the house belonged to Nathu Khan, Roshan, Jamila, Amana ect. It was contended that the defendants have been residing in the house for last 40 years. It was contended that Nathu Khan and his daughters never resided in the house in dispute. They have no right to alienate the house and deliver its possession to the plaintiffs by virtue of an agreement dated 7.5.1980 and as such the sale of the house and handing over its possession to the plaintiffs could not have arisen. It was also contended that the defendants never took over the forcible possession of the house by breaking the locks, rather the house is in possession of the defendants since long. It was also contended that no cause of action accrued to the plaintiffs and when they were never put in possession, the question of taking forcible possession by the defendants could not have arisen and it is wrong that the house will fetch Rs. 10./- per day for use and occupation. It was prayed that the suit be dismissed with costs. 6. On the basis of the pleadings of the parties, the learned Trial Court framed the issues on 9.11.1987 and thereafter the statements of the plaintiffs and their witnesses were recorded. 7. 10./- per day for use and occupation. It was prayed that the suit be dismissed with costs. 6. On the basis of the pleadings of the parties, the learned Trial Court framed the issues on 9.11.1987 and thereafter the statements of the plaintiffs and their witnesses were recorded. 7. An application under Order 22 Rule 4 CPC was moved with the prayer that the defendant No. 3 Sharif Khan died and his widow is already on record as defendant No. 6 has his legal heirs Amir Khan and Shamsad may be impleaded as defendants No. 3/1 and 3/2 to the suit. They were taken on record and impleaded as defendants No. 3/1 and 3/2 to the suit. An application was moved by them that they may be permitted to file written statement and the written statement was filed on 20.10.2001. When Amir Khan and Samsad were impleaded as party, they were minor and on attaining the age of majority, they moved an application for filing the written statement again after supplying them a copy of the plaint. The learned Trial Court permitted them to file the written statement and they filed the same. 8. On the basis of the pleadings of the parties, the learned Trial Court re-framed the issues on 31.1.2002. Thereafter the witnesses produced by the plaintiffs were cross-examination by the defendants No. 3/1 and 3/2 and thereafter the evidence of the defendants and their witnesses were recorded. 9. After hearing the final arguments of the parties, the learned Trial Court vide judgment and decree dated 13.7.2007 partly decreed the suit of the plaintiff-respondents for possession and order the defendant-petitioners to give possession of the house in dispute to the plaintiff-respondents within two months from the date of the decree. 10. Being aggrieved by the aforesaid judgment and decree, the defendant-petitioners have preferred the present revision petition. 11. On 6.9.2007, the learned counsel for the plaintiff-respondents contended before the Single Bench that in view of the judgment in Laxman Singh vs. Kan Singh (2002 (2) DNJ (Raj.) 700), the revision petition should be filed on advalorem Court fees. 12. 10. Being aggrieved by the aforesaid judgment and decree, the defendant-petitioners have preferred the present revision petition. 11. On 6.9.2007, the learned counsel for the plaintiff-respondents contended before the Single Bench that in view of the judgment in Laxman Singh vs. Kan Singh (2002 (2) DNJ (Raj.) 700), the revision petition should be filed on advalorem Court fees. 12. The Single Bench observed that in view of clear provisions of entry (p) of Second Schedule of the Rajasthan Court Fees and Suit Valuation Act, which specifically provides the Court fees leviable on the revision petition presented to the High Court under Section 115 of the Code of Civil Procedure arising out of a suit or proceedings, to treat the revision as appeal treating the judgment of the learned Trial Court to be decree so as to attract liability of advalorem Court fees, does not appear to be at all acceptable. Clause (p) of Article 11 of Schedule II of Rajasthan Court Fees and Suits Valuation Act does not at all admit any such distinction as is assumed by the learned Judge in Laxman Singh's case (supra). With the aforesaid observation, the Single Bench referred the matter to the larger Bench with the reference, which has been quoted in the first para of this order. 13. Apart admission of the revision petition, the learned counsel for the plaintiff-respondents Mr. S.D. Purohit raised preliminary objections as to the maintainability of the revision petition on the assertions inter alia that since this revision has been filed without paying ad valorem Court fee on Rs. 29,000/- and further because this is a revision petition against the decree granted by the Trial Court for wrongful dispossession of a person otherwise than in due course of law and the suit was based only on the fact of dispossession, it is not maintainable under the provisions of Section 6 of the Act, especially when sub-section (3) of Section 6 provides that no appeal shall lie from any decree passed in a suit by person dispossessed of immovable property nor shall any review of such decree be allowed. To support his contention Mr. Purohit has placed reliance on the decision of the Rajasthan High Court in Laxman Singh vs. Kan Singh (supra) and Punjab High Court is Walaiti Ram vs. Govind Ram (AIR 1954 Punjab 45). 14. Per Contra, Mr. To support his contention Mr. Purohit has placed reliance on the decision of the Rajasthan High Court in Laxman Singh vs. Kan Singh (supra) and Punjab High Court is Walaiti Ram vs. Govind Ram (AIR 1954 Punjab 45). 14. Per Contra, Mr. S.L. Jain Learned Counsel on behalf of the defendant-petitioners has contended that this revision petition being properly valued and paid with Court fee as per Schedule-II of Rajasthan Court Fees and Suit Valuation Act, 1961 and as per Article 11(p) of the aforesaid Sch.II, Rs. 10/- is the prescribed Court fee for the revision petition presented to the High Court under Section 115 C.P.C., or under the provisions of any other Act, arising out of a suit or proceeding if the value of suit exceeds Rs. 1,000/-. Hence, according to Mr. S.L. Jain, the revision petition is maintainable and cannot be dismissed for want of not properly valued or paid with Court fees. 15. We have considered the rival contentions raised by the learned counsel for both the parties. 16. It is settled position of law that no appeal lies from a decision in a suit under Section 6 of the Specific Relief Act. However, in such cases where a suit upon title is wrongly treated as a suit under Section 6, an appeal lies. The proper procedure for the Appellate Court in such case is to remand the suit for fresh disposal. In the suits decided under Section 6 of the Specific Relief Act, the revision can be preferred on various grounds including the reasons that where the Trial Court refuses to give relief to the plaintiff on the ground that he has no title or where the right of the plaintiff to sue under Section 6 is itself in dispute. If the error is palpable and the remedy is clear, the High Court can interfere in its revision jurisdiction, however, while exercising the revisional jurisdiction, the High Court cannot interfere on a point of law, especially when it is taken for the first time in revision. In the absence of jurisdictional error the finding of the Lower Court cannot be disturbed by the High Court. In our view, a decree passed in a suit under the provisions of Section 6 is revisable. Over view finds support from the judgment passed in Mahboob Pasha vs. A.R. Viswanatha Chetty (AIR 1994 Kant. In the absence of jurisdictional error the finding of the Lower Court cannot be disturbed by the High Court. In our view, a decree passed in a suit under the provisions of Section 6 is revisable. Over view finds support from the judgment passed in Mahboob Pasha vs. A.R. Viswanatha Chetty (AIR 1994 Kant. 350) and in Neyveli Lignite Corporation Ltd. vs. K.S. Narayan Iyer ( AIR 1965 Mad 122 ). 17. There is a specific provision that no appeal shall lie from any order or decree passed in any suit instituted under Section 6 of the Specific Relief Act, nor shall any review of any such order or decree be allowed and only a revision under Section 115 of the CPC is maintainable. Section 115 of the CPC 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." 18. On perusal of sub-section (3) of Section 6 of the Specific Relief Act, it is clear that there is no provision of appeal in the suits decided under Section 6 and the remedy is only by way of revision. 19. the High Court may make such order in the case as it thinks fit." 18. On perusal of sub-section (3) of Section 6 of the Specific Relief Act, it is clear that there is no provision of appeal in the suits decided under Section 6 and the remedy is only by way of revision. 19. We have considered the judgment passed by the Single Bench in Laxman Singh vs. Kan Singh (supra), in which it has been held that as per the definition of "decree" under Section 2(2) CPC it is plain that when a suit is finally adjudicated upon it expressly means conclusively determination of the rights of the parties with regard to all or any of the matters in controversy in the suit, but the Single Bench failed to take note of the provisions of sub-section (3) of Section 6 of the Specific Relief Act that as no appeal lies from a decision in a suit under Section 6 of the Specific Relief Act, the High Court can exercise revisional jurisdiction in terms of Section 115 of the CPC and further in view of the judgment in Mahboob Pasha vs. A.R. Viswanatha Chetty (supra), a decree passed against the provisions of Section 6 is revisable, hence, the ratio decided by the Single Bench in Laxman Singh vs. Kan Singh (supra), does not appear to be correct law. 20. The proceedings under Section 6 of the Specific Relief Act are summary in nature and the suit is not based on title, but it is always based on the previous possession or dispossession merely. There is a clearly provision in the Rajasthan Court Fees and Suits Valuation Act, 1961 in Schedule II Article No. 11(P) for the fixed Court fee for the revision petitions presented in the High Court under Section 115 of the CPC, therefore, it cannot be held that even for filing a revision petition, advalorem Court fee is required to be paid and there is no reason to treat the revision as an appeal. Clause (p) of the Article No. 11 of Schedule II of the Rajasthan Court Fees and Suit Valuation Act does not at all admit any such distinction as is assumed by the Single Bench in the case of Laxman Singh (supra) because while exercising the revisional jurisdiction, the Court exercises its powers to the extent of the provisions contained in Section 115 of the CPC and not to the extent of the provisions of Section 96 or 100 of the CPC, therefore, in our considered opinion, the view expressed by the Single Bench in Laxman Singh's case (supra) while relying upon the judgment of the Punjab and Haryana High Court in Walaiti Ram vs. Govind Ram (supra) cannot be held to be good law. 21. In view of the discussion made hereinabove, the reference made by the Single Bench is answered in the manner that the Court fee on a revision petition filed under Section 115 of the CPC against an order or decree of the Trial Court passed in a suit filed under Section 6 of the Specific Relief Act shall be payable as per Article No. 11(p) of the Schedule-II of the Rajasthan Court Fees and Suits Valuation Act, 1961 and the judgment in Laxman Singh's case does not law down correct law in the matter of leviability of Court fees on revisions filed against the decision of a suit filed under Section 6 of the Specific Relief Act.