N.P. Lalan Vs Lakshmidas Narayana Das

@JUDGMENTTAG-ORDER

V. Khalid, J.@mdashO. S. No, 547 of 1969 before the Munsiff''s Court, Cochin, was a suit for a perpetual injunction restraining the petitioner herein, the defendant in the suit, from executing the decree in O. S. No. 39 of 1965 on the file of the Sub Court, Cochin, and for other incidental reliefs. After the issues were framed, the Court-fee Examiner detected that the court-fee paid was not sufficient and observed that the suit fell u/s 27 (1) (ii) of the Kerala Court Fees and Suits Valuation Act, hereinafter referred to as the Act The plaintiff''s Advocate filed an objection stating that the plaintiff is not liable to pay any additional court-fee. This matter was heard by the learned Munsiff in detail and an order was passed on 26th June, 1970, directing the plaintiff to pay additional court-fee along with a statement u/s 10.

2. As the matter stood thus, the petitioner learnt that this order passed by the learned Munsiff was reviewed by him without any notice to him. This alerted the defendant, who made enquiries in Court and was informed that a review petition was filed and the order passed on June 26, 1970, was reviewed. It is complained that the defendant''s Advocate was not heard; nor was he given any notice. It is relevant to mention here that if additional court-fee is to be paid as per the earlier order of the Munsiff, the plaint will have to be returned for presentation to the Sub-Court as the suit will be beyond the pecuniary jurisdiction of the Munsiff''s Court. According to the defendant, it was to obviate this inconvenient position that the application for review was made by the plaintiff. The defendant has come up in revision against the order passed by the Munsiff in review.

3. The learned counsel for the respondent took a preliminary objection that the revision is not maintainable inasmuch as the question relating to court-fee is one between the State and the plaintiff and the defendant has no voice in that matter and as such the order passed fixing court-fee is not revisable u/s 115, CPC at the instance of the defendant. In support of this contention several authorities were cited before me by the learned counsel for the respondent.

4. In Ramkhelawan Sahu Vs. Bir Surendra Sahi and Others, it is held that an erroneous decision of the trial Court adverse to the plaintiff regarding court-fee can be interfered with in revision by the High Court. In Chintalapati Murthiraju Vs. Chintalapati Subbaraju and Others, , a Full Bench of the Madras High Court has held that "a revision petition lies when a court subordinate to the High Court has held that the plaintiff has inadequately stamped his plaint but a petition for revision does not lie when a defendant has unsuccessfully challenged the adequacy of the stamp affixed by the plaintiff, unless a further question of jurisdiction is involved". In Sankaran Nadar Lekshmanan Nadar Vs. Varathan Nadar Krishnan Nadar and Others, , Vaidialingam, J., observed:

"Though no doubt, a revision may not lie at the instance of the defendant regarding the adequacy of stamp paid on plaint, if a question of jurisdiction is involved in the ob- jection raised and that question is wrongly decided, a revision is maintainable. The High Court could interfere at the instance of a defendant, if the question railed by him went beyond the amount of court-fee payable and related to the jurisdiction of the Court to try the case."

5. In Sri Ratnavaramaraja Vs. Smt. Vimla, it has been held that "whether proper court-fee is paid on a plaint is primarily a question between the plaintiff and the State". The Supreme Court further held that "it is a grievous error to entertain revision applications on questions of court-fee at the instance of the defendant when no question of jurisdiction was involved". The law has therefore been authoritatively laid down by the Supreme Court, endorsing the principles enunciated in the earlier decisions referred to above, that a revision in a court-fee matter at the instance of the defendant is not maintainable unless the question of jurisdiction also is involved. It is therefore clear that a revision at the instance of the defendant regarding the sufficiency or not of the court-fee paid by the plaintiff cannot be made the subject-matter of revision u/s 115, Civil Procedure Code. But there is an additional rider to this principle and that it, when the question of jurisdiction is involved, then, the defendant gets a right to agitate the question in revision before High Court. This has been so found by Their Lordships of the Supreme Court in the decision referred to earlier.

6. It cannot be disputed that in this case the question of jurisdiction is involved, If the original order dated June 26, 1970 stood, the suit would have been beyond the pecuniary jurisdiction of the Munsiffs Court. It is therefore clear that the revision is maintainable.

7. There is another contention available to the petitioner in this case, which 1 uphold. The question regarding court-fee can be decided either as provided u/s 12 or u/s 18 of the Act. u/s 12 (1) the Court shall before ordering the plaint to be registered decide the proper fee payable, which is subject to review and correction. u/s 12 (2) the Court can at the instance of the defendant decide the question of court-fee. u/s 12 (3) the Court can decide the question of court-fee at the instance of the defendant added after issues have been framed. u/s 18 (2) the Court is given powers to decide the question of court-fee on the report of the Court-fee Examiner, and it is specifically provided therein that it will be lawful for the Court to review an earlier decision given by the Court on the same question. Obviously, the reference here is to orders passed by the Court earlier undei Section 12 of the Act. By implication it would therefore mean that an order passed u/s 18 (2) by the Court cannot further be reviewed. What has happened in this case is, the learned Munsiff has reviewed the original order passed on the report of the Court-Fee Examiner, which is clearly without jurisdiction. The following decisions lay down the same principle.

6. In Anantha Naicken Rama Naicken Vs. Vasudev Naickan and Others, this Court has laid down thus:

"When objection is taken by the Court-fee Examiner to the correctness of the court-fee paid by a party in a suit or appeal and when the party contests the view taken by the court-fee Examiner, the Court has a duty to consider the nature of the objections raised by the Court-fee Examiner, the explanation offered by the party concerned or his answers to the objection raised by the Court-fee Examiner, and the Court concerned must also pass an order setting out all these aspects and express clearly its view as to whether it accepts the opinion of the Court-fee Examiner or whether it accepts the stand taken by the party concerned."

9. In Janaki Ammal v. Rangachari, ILR (1961) Mad 369 it is laid down with reference to the corresponding provisions of the Madras Court Fees and Suits Valuation Act, that when a decision has been given on the report of the Court-fee Examiner, no further review or reconstruction was possible except by an appellate court u/s 12 (4), that a decision given u/s 18 (2) of the Court Fees Act, 1955, would be final so far as that Court was concerned and that any orders passed in violation thereof would be without jurisdiction.

10. In Sukumaran Nair v. Raghavan Nair 1970 KLT 929 Moidu, J., has held that a decision u/s 18 (2) of the Act would be final so far as the Court is concerned. The Court had no further right to consider the question during the pendency of the appeal as the decision was final u/s 18 (2) of the Act. The Court Fees Act envisages a distinction between orders passed by the trial Court u/s 12 and Section 18 (2) of the Act. In orders passed u/s 12, the Court has jurisdiction to reconsider the question of court-fee. But once the question of court-fee is considered and decided by the Court on a check-slip issued by the Court-fee Examiner u/s 18 (2), the Court ceases to have further jurisdiction to reconsider the same. This is exactly what the learned Munsiff has done in this case, and hence the order under revision is not sustainable.

11. The procedure adopted by the plaintiff in getting the order reviewed without notice to the other side is a good ground to award costs in this revision.

In the result, the civil revision petition is allowed with costs.