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2011 DIGILAW 444 (MP)

Munnalal Kesharwani v. Ramwati Mishra

2011-04-08

K.K.LAHOTI, S.C.SINHO

body2011
ORDER 1. This review petition is directed against the order dated 1.9.2010 in W.P. No. 14287/09 passed by this Bench by which writ petition under Article 227 of the Constitution of India was allowed and the order passed by the trial Court i.e. VI Additional District Judge, Jabalpur in Civil Suit No. 163-A/2004 dated 28.11.2007 was set aside. Though this review petition is barred by limitation, but we have heard the learned counsel for petitioner on admission of the review petition. 2. Learned counsel for petitioner raised following contentions :- (1) That the order passed by the trial Court dated 28.11.2007 (supra) was an appealable order as rejection of plaint amounts to a decree as defined in section 2 (2) of the Code of Criminal Procedure. (2) Respondents ought to have filed a first appeal against the aforesaid order, but invoking the jurisdiction of this Court under Article 227 of the Constitution of India was misconceived. 3. Stating aforesaid, it was submitted that the order dated 1.9.2010 passed by this Court may be reviewed. 4. Before proceeding further, we quote the order dated 1.9.2010, so that factual position in the case may be ascertained. "1.9.2010 Shri D.K. Singh, Counsel for petitioners. This petition is directed against an order dated 28.11.2007 by VI Additional District Judge, Jabalpur in civil Suit No. 163-A/2004 by which the trial Court directed the petitioner to make payment of court-fee on the relief of possession. Facts of the case are that petitioners filed a suit for specific performance of contract. The total consideration in contract was Rs. 1,50,000/- Petitioners prayed for relief of specific performance of contract and paid court-fee Rs. 17,600/- on the amount of Rs. 1,50,000/-. During pendency of the suit, petitioners amended the plaint by inserting of relief of possession. When such relief was inserted, defendant raised an objection that the plaintiffs are required to make payment of additional court-fee on the relief of possession. The trial Court directed that a relief of possession was not prayed in the suit initially and after amendment of the suit, such relief has been prayed, so plaintiffs are required to make ad valorem court-fee on the relief of possession. This order is under challenge in this petition. For a suit of specific performance of contract, ad valorem court-fee is required on the basis of total consideration of the agreement. This order is under challenge in this petition. For a suit of specific performance of contract, ad valorem court-fee is required on the basis of total consideration of the agreement. A relief of possession in such suit can be granted under section 22 of the Specific Relief Act, 1963. For ready reference, section 22 of the Act is quoted thus: 22. Power to grant relief for possession, partition, refund of earnest money, etc :- (1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908, any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for - (a) possession, or partition and separate possession, of the property, in addition to such performance; or (b) any other relief to which he may be entitled, including the refund Of any earnest money or deposit paid or made by him, in case his claim for specific performance is refused. (2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the Court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the Court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief. (3) The power of the Court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under section 21. Aforesaid provision specifically provides that any person suing for the specific performance of a contract for transfer of immovable property may ask for relief of possession in such suit. When such relief can be granted in a suit for specific performance of contract, a separate court-fee for the relief of possession was not required. The trial Court erred in directing the petitioner/ plaintiffs to make payment of additional court-fee on the relief of possession which order cannot be sustained under the law. The impugned order is hereby set aside. The matter is remanded back to the trial Court to proceed in the matter in accordance with law. No order as to costs." 5. The trial Court erred in directing the petitioner/ plaintiffs to make payment of additional court-fee on the relief of possession which order cannot be sustained under the law. The impugned order is hereby set aside. The matter is remanded back to the trial Court to proceed in the matter in accordance with law. No order as to costs." 5. We asked from the learned counsel for petitioner whether in a suit for specific performance when the plaintiff has already paid ad valorem court-fee on the amount of consideration then, while seeking relief of possession at a subsequent stage by the plaintiff, another court-fee would by required or not, learned counsel for petitioner fairly admitted the legal position that no additional court-fee would be required. Now question remains whether in place of filing of first appeal against aforesaid order, writ petition could have been entertained by this Court or not. Article 227 of the Constitutoin of India provides thus ; 227. Power of superintendence over all Courts by the High Court: (1) Every High Court shall have superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction. (2) Without prejudice to the generality of the foregoing provision, the High Court may - (a) call for returns from such Courts; (b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such Courts; and (c) prescribe forms in which books, entries and accounts shall be kept by the offcers of any such Courts. (3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such Courts and to attorneys, advocates and pleaders practising therein; Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor. (4) Nothing in this Article shall be deemed to confer on a High Court powers of superintendence over any Court or Tribunal consituted by or under any law relating to the Armed Forces. 6. Aforesaid Article specifically provides that the High Court shall have superintendence over all Courts throughout the territories in relation to which it exercises its jurisdiction. (4) Nothing in this Article shall be deemed to confer on a High Court powers of superintendence over any Court or Tribunal consituted by or under any law relating to the Armed Forces. 6. Aforesaid Article specifically provides that the High Court shall have superintendence over all Courts throughout the territories in relation to which it exercises its jurisdiction. Aforesaid Article gives wide power to the High Court to see legality, properiety of any order passed by the Courts sub-ordinate to it. Though where an appeal is provided, aforesaid power is sparingly to be used, but in the present case we have perused the impugned order passed by the trial Court and found that an illegal order was passed by the trial Court resulting miscarriage of justice. This Court invoking jurisdiction under Article 227 of the Constitution set aside the aforesaid order. In view of the aforesaid, if jurisdiction was exercised by this Court against the aforesaid order in the peculiar facts of the case though inspite of availability of the alternative remedy by filing an appeal, review cannot be entertained. The availability of alternative remedy is a matter of convenience and cannot be used to sustain an illegal order. In the present case, justice has been done, so we do not find any ground to enterain the review petition. 7. As we have considered the case on merits, it is not necessary for this Court to consider I.A.No. 2186/11 seeking condonation of delay in filing this review petition. Accordingly, this review petition is dismissed with no order as to costs. Ashok Jaiswal for petitioner.