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2011 DIGILAW 3456 (MAD)

Jayarani v. M. Anjalatchi

2011-07-28

K.VENKATARAMAN

body2011
JUDGMENT :- 1. These revisions came to be filed seeking to set aside the fair and decretal orders made in I.A.Nos.213 & 214 of 2009 in O.S.No.491 of 2008 dated 15.03.2010. 2. The defendants 3 to 7 in the said suit are the petitioners and the plaintiff thereon is the respondent. 3. In a suit filed by the respondent against the petitioners and others for permanent injunction restraining the petitioners and others from interfering with her peaceful possession and enjoyment over the suit property, the petitioners have taken out an application in I.A.No.213 of 2009 under Rule 12 (2) of the Tamil Nadu Court Fees and Suits Valuation Act, stating that the suit has not be valued properly and sufficient Court fee has not been paid and the preliminary issue shall be decided on the said issue. They have also filed an application in I.A.No.214 of 2009 under Order 14 Rule 2 of the Civil Procedure Code requesting the Court to decide the issue regarding maintainability of the suit as barred by resjudicata as preliminary issue. Those applications came to be dismissed by the Court below and the present revisions are directed against the said orders. 4. Mr.R.Gururaj, learned counsel appearing for the petitioners strenuously contended that the respondent herein who has laid the suit is a party to the earlier suit and hence, she should have sought for a declaratory relief and mere relief for injunction will not lie. That apart, he has contended that when a suit has to be laid for a declaratory relief, the respondent herein has laid a suit only for injunction thereby, she has not paid the proper Court fee. He has further added that since the present suit laid by the respondent is hit by resjudicata, the said issue has to be decided as a preliminary issue before deciding the other issues. 5. On the other hand, the learned counsel for the respondent contended that the valuation of the suit can be made only on the basis of the averments made in the plaint and also the prayer that has been sought for in the plaint. Hence, according to the learned counsel for the respondent, the suit has been valued properly and the Court fee paid thereon is perfectly in order. Hence, according to the learned counsel for the respondent, the suit has been valued properly and the Court fee paid thereon is perfectly in order. That apart, he has contended that the question of resjudicata is a mixed question of fact and law, which has to be decided along with other issues and hence, the maintainability of the suit cannot be decided as a preliminary issue. 6. I have carefully considered the submissions made by the learned counsel for the petitioners as well as the learned counsel for the respondent. 7. The petitioners have filed an application in I.A.No.213 of 2009 under Rule 12 (2) of the Tamil Nadu Court Fees and Suits Valuation Act wherein the relief that has been sought for is that the respondent herein has not valued the suit properly and sufficient Court fee has not been paid. Admittedly, the respondent herein has filed the suit for permanent injunction restraining the petitioners and others from interfering with her peaceful possession and enjoyment over the suit property. On the basis of the said relief, Court fee has been paid. If a declaratory relief has been sought for and the suit has been valued only for permanent injunction, the petitioners would be justified in saying that proper Court fee has not been paid. That apart, as held by this Court and by the Hon'ble Apex Court, Court fee depends upon the pleadings and prayer that has been sought for. It does not depend upon the defence of the other side. 8. Thus, I am of the considered view that prima facie, this Court formed an opinion that the Court fee paid by the respondent herein as per the relief sought for by her in the suit, is perfectly in order. However, I am leaving the question open to be decided in the suit wherein the petitioners as well as the respondent can lead evidence in this respect. 9. Further more, as rightly contended by the learned counsel for the respondent whether the present suit laid by the respondent is hit by resjudicata or not are mixed question of fact and law, which has to be decided at the time of trial wherein the parties will have liberty to let in evidence. 9. Further more, as rightly contended by the learned counsel for the respondent whether the present suit laid by the respondent is hit by resjudicata or not are mixed question of fact and law, which has to be decided at the time of trial wherein the parties will have liberty to let in evidence. Further, Order 14 Rule 2 stipulates that where issues both of law and fact arises and the Court is of the opinion that the suit has to be disposed of on all issues, it has to decide on all issues. 10. In the present case on hand, since the mixed question of law and fact arises it would be proper for the Court below to decide all the issues along with the issues raised by the petitioners regarding maintainability of the suit and on the question of resjudicata. 11. Learned counsel appearing for the petitioners relied on the decision reported in 2009-4-L.W. 650 [M.Abdul Muthalip V. M.Samsudeen) and contended that the respondent herein ought to have filed the suit for setting aside the decree passed in the earlier suit. However, the said issue was decided in a Second Appeal and not in an application. In the said decision, after the entire trial and when the matter came up before this Court by way of Second Appeal, the said issue was considered by this Court. Whereas, in the present case on hand, it is a preliminary stage where the trial has not started and hence, the decision cited is of no use to the petitioners. 12. Yet another decision that has been cited by the learned counsel for the petitioners is reported in AIR 1973 Supreme Court 2384 [Shamsher Singh V. Rajinder Prashad and others]. The facts relating to the cited decision are in respect of the suit not only for injunction but also regarding declaration. Hence, the judgment may not be on par to the present case on hand. 13. One more decision that has been cited by the learned counsel for the petitioners is AIR 1966 Supreme Court 153 [Pandurang Dhondi Chougule and others V. Maruti Hari Jadhav and others]. The matter that came before the Hon'ble Apex Court was pertaining to the question of the adjustment of debts on an application under Section 17 of Bombay Agricultural Debtors Relief Act (28 of 1939). The matter that came before the Hon'ble Apex Court was pertaining to the question of the adjustment of debts on an application under Section 17 of Bombay Agricultural Debtors Relief Act (28 of 1939). It would be useful to extract paragraph-10 of the order made thereunder: "10.The provisions of S.115 of the Code have been examined by judicial decisions on several occasions. While exercising its jurisdiction under S.115, it is not competent to the High Court to correct errors of fat, however, gross they may be, or even errors of law, unless the said errors have relation to the jurisdiction of the Court to try the dispute itself. As Cls. (a), (b) and (c) of S.115 indicate, it is only in cases where the subordinate Court has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity that the revisional jurisdiction of the High Court can be properly invoked. It is conceivable that points of law may arise in proceedings instituted before subordinate Courts which are related to questions of jurisdiction. It is well-settled that a plea of limitation or a plea of res judicata is a plea of law which concerns the jurisdiction of the Court which tries the proceedings. A finding on these pleas in favour of the party raising them would oust the jurisdiction of the Court, and so, an erroneous decision on these pleas can be said to be concerned with questions of jurisdiction which fall within the purview of S.115 of the Code. But an erroneous decision on a question of law reached by the subordinate Court which has no relation to questions of jurisdiction of that Court, cannot be corrected by the High Court under S.115." In the said decision, the Hon'ble Apex Court that while exercising the jurisdiction under Section 115 by the High Court, however, gross an order passed by the trial Court or even if error of law has occurred in the order of the Court below, it shall not be interfered by the High Court unless such errors have relation to the jurisdiction of the Court to try the dispute itself. In the case on hand, though it is revision filed under Article 227 of the Constitution of India, the principle laid in the said decision will apply to a revision made under Article 227 of the Constitution of India. That apart, on facts, I find that the said judgment will not have bearing to the facts on hand. 14. Considering the above aspects and considering the discussions made, I am of the considered view that there exist no necessity to interfere with the orders referred to above and in fine, the civil revision petitions stand dismissed. Consequently, the connected miscellaneous petition is closed. No costs. 15. However, learned Principal District Munsif, Cuddalore is directed to dispose of the suit in O.S.No.491 of 2008 at the earliest, in any event, within a period of three months from the date of receipt of a copy of this order. 16. It is needless to say that the parties to the suit shall co-operate for the early disposal of the suit and both the parties are at liberty to raise all the grounds before the Court below. The Court below is directed to dispose of the suit uninfluenced by its orders and the orders made in this revision.