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Judgment
N.G. Das, J.—The two questions involved in this application filed under Article 227 of the Constitution of India read with Section 151 of the CPC are whether an order of temporary injunction can be granted on the basis of a plaint which was not initially stamped with adequate Court Fees and whether after the ad interim order of temporary injunction was made absolute the aggrieved party can challenge the order under Article 227 of the Constitution read with Section 151, CPC without preferring appeal under Order XLIII, Rule l(r) CPC.
Before I proceed to answer the question it would perhaps be desirable to set out the facts in brief.
On 21.12.1991 the Opposite Party No. l, namely Shri Bustimall Suklesha who is the head-master of Hindu Vidyalaya, Bongaigaon filed a suit in the Court of Munsiff, Bongaigaon in representative capacity for a declaration that Bongaigaon Hindi Vidyalaya is the owner and possessor of the suit land appertaining to Dag Nos.418 and 419 situate in Bongaigaon Town (more particularly described in the schedule attached to the plaint) and also for permanent injunction restraining the defendants namely, the present petitioners from further demolition and dismantling of structures, houses etc. situate over the suit land.
Along with the plaint the opposite party also filed an application under Order XXXIX Rules 1 and 2, CPC read with Section 151, CPC for granting ad interim injunction restraining the defendants-petitioners/their agents, workers, servants, etc. from entering the suit land described in Schedule A of the plaint till disposal of the suit and also to grant a mandatory injunction giving the B Schedule land into the possession of the plaintiff-opposite party forthwith either through police or otherwise till disposal of the suit. The plaintiff-opposite party also filed an application under Section.80(2), CPC for granting leave to dispense with the service of notice required by sub-section (i) of Section 80.
Considering the importance of the suit, learned Munsiff granted the prayer allowing the plaintiff-opposite party to file the suit without service of notice u/s 80, CPC and also granted time for paying deficit Court-fee fixing the date on 7.1.1992. On the same date learned Munsiff however, granted the ad interim injunction as prayed for and issued notice to the present petitioners to show cause as to why the ad interim injunction thus granted should not be made absolute fixing the date on 7.1.1992. The plaintiff-respondent deposited the deficit Court fee on 7.1.1992 and the defendant-petitioners having filed the written objection learned Munsiff heard both the parties about the matter of granting injunction and made the order of ad interim injunction dated 20.12.1991 absolute by his order, dated 20.1.1992. Aggrieved by this order, the defendants filed the present petition.
Before entering into the rival contention it may be stated here there is no dispute that learned Munsiff allowed the plaintiff-opposite party to deposit the Court fees by 7.1.1992 and the plaintiff opposite party also paid the deficit Court fees on that date. It is also not disputed that the order dated 20.1.1992 was passed by the learned Munsiff after hearing both the parties.
But it is argued by Mr. J.N. Sarma, the learned Counsel appearing for the petitioner that learned Munsiff was not competent to pass such an order as there was no plant before him when he passed the ad interim order of injunction on 21.12.1992. Referring to Order V, Rule 1, CPC it is submitted y learned Counsel for the petitioner that learned Munsiff can issue summons only when a suit has been duly instituted. Mr.Sarma laid stress on the words "duly instituted" and contended that unless regular suit was filed the learned Munsiff was not entitled to entertain any application for temporary injunction. He drew my attention to Section 4 of the Court Fees Act, 1870 and contended that such a plaint which is chargeable with fees cannot be entertained to pass any effective order. But Mr. O.P. Bhati, learned counsel appearing for the opposite party has submitted that the petitioner cannot take a new plea as their original stand was that there was no plaint before the learned Munsiff when he passed the order of ad interim injunction. It is also submitted by Mr. Bhati the learned Counsel that this contention was never agitated before the trial Court and hence the petitioner cannot take a new plea before this Court.
The next point which has been urged by learned Counsel Mr. Bhati is that Section 149 of CPC empowers a Court to allow time to deposit the deficit Court fees and once the Court exercises such discretion in allowing to make up deficiency in Court fee the order relates back to the date of filing of plaint and it operates as a plaint from the date of its institution and not from the date of payment of Court fee. In support of his contention reliance has been placed on a decision in the case of Mannan Lal Vs. Chhotaka Bibi, (Dead) by Lrs. B. Sharda Shankar and Others, , where it has been held by their Lordships that Section 149, CPC mitigates the rigour of Section 4 of the Court Fees Act and it is for the Court to harmonies the provision of both the Court Fee Act and CPC by reading Section 149 CPC as proviso to Section 4 of the Court Fees Act and allowing the deficit Court fees to be made good within a period of time fixed y it. In the instant case, it is an admitted fact that the learned Munsiff allowed the opposite party-plaintiff to deposit the Court fee by 7.1.1992 and the opposite party-plaintiff also deposited the deficit Court fee by that date. So, in view of the aforesaid dictum it has to be concluded that on payment of the deficit Court fee within the specified period of time the application operates as a plaint from the date of institution.
It has, however, been quite fervently argued by Mr.Sarma learned Counsel appearing or the petitioner that no plaint in the eye of law was before the learned Munsiff at the time when''d interim order of injunction was passed and if such things are allowed to be continued then the person requiring temporary injunction will file the suit without proper Court fee and see if he succeeds in getting the temporary injunction and in case temporary injunction is not granted then they will not proceed with the case any further. That may be a fact but in the instant case it will appear from the very first order of learned Munsiff that considering the importance of the suit he granted the leave to file the suit without service of notice required u/s 80, CPC and he also in his discretion granted time to deposit deficit Court fee. It cannot be disputed that under the provision of Section 149, CPC the Court has the power to allow time to deposit the deficit Court fee and once the deficit Court fee is deposited within the specified time the plaint would operate as a regular plaint from the date of its institution. In view of the provisions of Section 149 it cannot therefore be said that there was no plaint before the learned Munsiff.
Mr. Bhati the learned Counsel for the opposite party has next contended that the deficit Court fee having been paid before 20.1.1992 when learned Munsiff made ad interim order of injunction absolute the petitioner cannot now agitate that there was no plaint before him in the eye of law. It is submitted that Mr. Bhati that the ad interim order of injunction which was passed on 21.12.1991 having been merged into the order passed on 20.1.1992 the petitioner had the remedy to file an appeal under Order XLIII, Rule l(r) of CPC. Mr. Bhati''s contention is that since there is an alternative remedy the petitioner cannot file an application under Article 227 of the Constitution. In support of his contention Mr. Bhati referred to the decision in case of Mohd. Yunus Vs. Mohd. Mustaqim and Others, . In this case it has been held that "the supervisory jurisdiction conferred under Article 227 is limited to seeing that an inferior Court tribunal functions within the limits of its authority, and not to correct an error apparent on the face of the record, much less an error of law. A mere wrong decision without anything more is not enough to attract jurisdiction under this article."
But Mr. J.N. Sarma, the learned counsel has placed reliance on the decision of the case Trimbak Gangadhar Telang and Another Vs. Ramchandra Ganesh Bhide and Others, . On reading the judgment of this case I find the facts are quite distinguishable as in this case after issuance of the notices terminating tenancy with respect to the parcels of land the appellant presented an application for possession of all the parcels of land before the Extra Awal Karkun, Miraj who dismissed the application. The decision of the Extra Awal Karkun, Miraj was confirmed in appeal by the Special Dy. Collector, tenancy appeal Sangli. The matter was then taken in revision before the Bombay Revenue Tribunal which set aside the orders of the Extra Awal Karkun. Miraj and Special Dy. Collector, Tenancy Appeal Sangli and remanded the appeal for fresh trial. Thereafter, Mamaltdar Miraj Taluka recorded further evidence and gave his decision. Aggrieved by the decision of the Mamaldar Miraj Taluka appeal was filed before the Special Dy. Collector, Tenancy Appeal, who allowed the same. The matter was then taken in revision by both the parties to Bombay Revenue Tribunal who set aside the order of the Special Dy. Collector and restored that to Mamlatdar. Aggrieved by the decision of the revenue tribunal the appellant filed a Special Civil Application in the High Court of Judicature at Bombay which dismissed the same. Thereafter, appeals were filed by special leave before the Apex Court against the judgment and order of the High Court of Judicature at Bombay. But the appeals were also dismissed with the observation that it is well settled rule of practice not to interfere with the exercises of discretionary powers under Article 226 and 227 of the Constitution merely because two views are possible on the facts of the case. This decision, is, therefore, not applicable to the present case.
The next case referred to by Mr.Sarma, the learned counsel for the petitioner in the case of State of Gujarat etc. Vs. Vakhtsinghji Sursinghji Vaghela and Others etc., . On perusal of the judgment 1 find that the facts of this case are also distinguishable from the present one. In this case, the Collector made his award of compensation under Sections 7 and 14 of the Bombay Talukdari Tenure Abolition Act, 1949. The claimants filed appeal before the revenue tribunal and later petition under Article 227 of the Constitution to the High Court. It would, therefore, appear that the aggrieved party did not come direct to the High Court under Article 227 of the Constitution to the High Court. It would, therefore, appear that the aggrieved party did not come direct to the High Court under Article 227 of the Constitution. So, this case is also not applicable to the present case.
It is, however, true that before 7.1.1992 there was no plaint before the Court in the eye of law, But after 7.1.1992 when the deficit Court fees were paid it cannot be said that there was no plaint before the Court of learned Munsiff. I have already stated above that once the Court exercises its discretion in allowing to make up deficiency in Court fee the order relates back to the date of filing of plaint. The order dated 20.1.1992 whereby learned Munsiff made the ad interim order of injunction absolute was passed after the deficit Court fees were paid. So, I am of opinion that the petitioner ought to have preferred an appeal under Order XLIII, Rule l(r) of CPC. The supervisory power conferred under Article 227 of the Constitution cannot in my opinion be exercised in such a case where alternative remedy is available.
The petition is, therefore, found devoid of merit and accordingly it is dismissed. But in the circumstances, there would be no order as to costs.