Research › Search › Judgment

Madhya Pradesh High Court · body

2013 DIGILAW 941 (MP)

Rajesh Jaiswal v. Sanjay Sarvagi

2013-08-13

U.C.MAHESHWARI

body2013
JUDGMENT U.C. Maheshwari, J. 1. The applicant/defendant has filed this revision under Section 115 of the Civil Procedure Code being aggrieved by the order dated 19-6-2013 passed by the Civil Judge Class 2, Distt. Anuppur in Civil Suit No. 45-A/2006, whereby after taking so many adjournment when the requisite Court-fees was not affixed/paid by the applicant/defendant on his counter-claim then the same has been dismissed under Order 7 Rule 11 of the CPC for want of the Court fees. Applicant Counsel after taking me through the revision memo as well as impugned order place on the record by referring the earlier decision of the Full Bench of this Court in the matter of Subhash Chandra Jain Vs. The Chairman, M.P. Electricity Board and others, reported in 2000 (4) M.P.H.T. 318 (FB), has argued that in view of the Para 6 of this judgment the impugned order is not sustainable and prayed that the impugned order being passed contrary to the aforesaid legal position be set aside, by admitting and allowing this revision. 2. Having heard the Counsel keeping in view the argument, I have carefully gone through the averments of the revision and the papers placed on record. So far the principle laid down in the aforesaid cited case is concerned, there is no dispute regarding such principle but the same is not applicable to the present case because the cited case is based on some other question relating to the arbitrary valuation. While in the present case, despite extending so many opportunities to the applicant to submit the deficit Court-fees on the counter-claim, neither the Court-fees was paid nor any application in that regard was filed. So in such premises, the Trial Court has not committed any error in passing the impugned order dismissing the counter-claim of the applicant in default of payment of the deficit Court-fees. Even otherwise, the impugned order appears to be passed by the Trial Court under the vested discretionary jurisdiction and as per settled proposition laid down by the Apex Court in the matter of The Managing Director (MiG), Hindustan Aeronautics Ltd., Balanagar, Hyderabad and another (in both the appeals), Appellants Vs. Ajit Prasad Hindustan Aeronautics Ltd., Balanagar, Hyderabad (in both the appeals), Respondent, reported in AIR 1973 SC 76 , holding that the order passed by the Subordinate Court under its vested jurisdiction could not be interfered under the revisional jurisdiction. Ajit Prasad Hindustan Aeronautics Ltd., Balanagar, Hyderabad (in both the appeals), Respondent, reported in AIR 1973 SC 76 , holding that the order passed by the Subordinate Court under its vested jurisdiction could not be interfered under the revisional jurisdiction. Such principle is also laid down by the Apex Court in the matter of Kokkanda B. Poondacha and others Vs. K.D. Ganapathi and another, reported in AIR 2011 SC 1353, in which while considering the scope of Article 227 of the Constitution of India, it was held that discretionary order of the Subordinate Court could not be interfered by the High Court under the writ jurisdiction vested under Article 227 of the Constitution of India. 3. In the aforesaid premises, I have not found any circumstances, in the impugned order to invoke the revisional jurisdiction of this Court to set aside the same, hence this revision is hereby dismissed. 4. Even otherwise, the dismissal of counter-claim under provision of Order 7 Rule 11 of CPC is amount of decree as per definition of the decree enumerated under Section 2(2) of CPC and the same is appealable under Section 96 of CPC. So in such premises also, their revision could not be entertained. 5. At this stage, the applicant Counsel seeks liberty file to some application for extension of time to pay the Court-fees before the Trial Court. The party has a right to file any application in his litigation if the same if permissible under the law hence no liberty is required. However, pursuant to it the Trial Court is directed that if any such application, as prayed by the applicant Counsel, is filed then the same be considered in accordance with the procedure prescribed under the law. The revision is dismissed with aforesaid observation.