Jayarani and Others vs M. Anjalatchi

K. Venkataraman, J.—These revisions came to be filed seeking to set asidethe fair and decretal orders made in I.A. Nos. 213 & 214 of2009 in O.S. No. 491 of 2008 dated 15.03.2010.

The Defendants 3 to 7 in the said suit are the Petitioners and the Plaintiff thereon is the Respondent.

In a suit filed by the Respondent against thePetitioners and Ors. for permanent injunction restraining the Petitioners and Ors. from interfering with herpeaceful 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 bevalued properly and sufficient Court fee has not been paidand the preliminary issue shall be decided on the saidissue. They have also filed an application in I.A. No. 214 of 2009 under Order 14 Rule 2 of the CPC requesting the Court to decide the issue regarding maintainability of the suit as barred by res judicata aspreliminary issue. Those applications came to be dismissed by the Court below and the present revisions are directed against the said orders.

Mr. R.Gururaj, learned Counsel appearing for thePetitioners strenuously contended that the Respondent herein who has laid the suit is a party to the earliersuit and hence, she should have sought for a declaratoryrelief and mere relief for injunction will not lie. Thatapart, he has contended that when a suit has to be laid fora declaratory relief, the Respondent herein has laid a suitonly for injunction thereby, she has not paid the properCourt

fee. He has further added that since the present suitlaid by the Respondent is hit by res judicata, the saidissue has to be decided as a preliminary issue beforedeciding the other issues.

On the other hand, the learned Counsel for theRespondent contended that the valuation of the suit can bemade only on the basis of the averments made in the plaintand 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 paidthereon is perfectly in order. That apart, he has contended that the question of res judicata is a mixed question offact and law, which has to be decided along with otherissues and hence, the maintainability of the suit cannot bedecided as a preliminary issue.

I have carefully considered the submissions made bythe learned Counsel for the Petitioners as well as thelearned Counsel for the Respondent.

The Petitioners have filed an application in I.A. No. 213 of 2009 under Rule 12 (2) of the Tamil NaduCourt Fees and Suits Valuation Act wherein the relief thathas been sought for is that the Respondent herein has notvalued the suit properly and sufficient Court fee has notbeen paid.

Admittedly, the Respondent herein has filed thesuit for permanent injunction restraining the Petitioners and others from interfering with her peaceful possessionand enjoyment over the suit property. On the basis of thesaid relief, Court fee has been paid. If a declaratoryrelief has been sought for and the suit has been valuedonly for permanent injunction, the Petitioners would bejustified in saying that proper Court fee has not beenpaid. That apart, as held by this Court and by the Hon'ble Apex Court, Court fee depends upon the pleadings and prayerthat has been sought for. It does not depend upon thedefence of the other side.

Thus, I am of the considered view that prima facie,this Court formed an opinion that the Court fee paid by theRespondent herein as per the relief sought for by her inthe suit, is perfectly in order. However, I am leaving thequestion open to be decided in the suit wherein thePetitioners as well as the Respondent can lead evidence in this respect.

Further more, as rightly contended by the learnedcounsel for the Respondent whether the present suit laid bythe Respondent is hit by res judicata or not are mixedquestion of fact and law, which has to be decided at thetime of trial wherein the parties will have liberty to letin evidence.

Further, Order 14 Rule 2 stipulates that whereissues both of law and fact arises and the Court is of theopinion that the suit has to be disposed of on all issues,it has to decide on all issues.

In the present case on hand, since the mixed question of law and fact arises it would be proper for theCourt below to decide all the issues along with the issuesraised by the Petitioners regarding maintainability of thesuit and on the question of res judicata.

Learned Counsel appearing for the Petitionersrelied on the decision reported in 2009 4 L.W. 650 [M. Abdul Muthalip v. M. Samsudeen) and contended that the Respondentherein ought to have filed the suit for setting aside thedecree passed in the earlier suit. However, the said issuewas decided in a Second Appeal and not in an application. In the said decision, after the entire trial and when thematter came up before this Court by way of Second Appeal,the said issue was considered by this Court. Whereas, inthe present case on hand, it is a preliminary stage wherethe trial has not started and hence, the decision cited isof No. use to the Petitioners.

Yet another decision that has been cited by thelearned Counsel for the Petitioners is reported in AIR 1973 Supreme Court 2384 [Shamsher Singh v. Rajinder Prashad and Ors.]. The facts relating to the cited decision are in respect of the suit not only for injunction but alsoregarding declaration. Hence, the judgment may not be onpar to the present case on hand.

One more decision that has been cited by the learned Counsel for the Petitioners is AIR 1966 Supreme Court 153 [Pandurang Dhondi Chougule and Ors. v. Maruti Hari Jadhav and Ors.]. The matter that came before the Hon'ble Apex Court was pertaining to the question of theadjustment of debts on an application u/s 17 of Bombay Agricultural Debtors Relief Act (28 of 1939). Itwould be useful to extract paragraph- 10 of the order madethereunder:

The provisions of Section 115 of the Code havebeen examined by judicial decisions on severaloccasions. While exercising its jurisdiction under s. 115, it is not competent to the High Court tocorrect errors of fat, however, gross they may be,or even errors of law, unless the said errors haverelation to the jurisdiction of the Court to trythe dispute itself. As Cls. (a), (b) and (c) of Section 115 indicate, it is only in cases where thesubordinate Court has exercised a jurisdiction notvested in it by law, or has failed to exercise ajurisdiction so vested, or has acted in theexercise of its jurisdiction illegally or with material irregularity that the revisionaljurisdiction of the High Court can be properlyinvoked. It is conceivable that points of law mayarise in proceedings instituted before subordinate Courts which are related to questions of jurisdiction. It is well-settled that a plea oflimitation or a plea of res judicata is a plea oflaw which concerns the jurisdiction of the Courtwhich tries the proceedings. A finding on thesepleas in favour of the party raising them wouldoust the jurisdiction of the Court, and so, anerroneous decision on these pleas can be said tobe concerned with questions of jurisdiction whichfall within the purview of Section 115 of the Code. Butan erroneous decision on a question of law reachedby the subordinate Court which has No. relation toquestions of jurisdiction of that Court, cannot becorrected by the High Court u/s 115.

In the said decision, the Hon'ble Apex Court that whileexercising the jurisdiction u/s 115 by the HighCourt, however, gross an order passed by the trial Court oreven if error of law has occurred in the order of the Courtbelow, it shall not be interfered by the High Court unlesssuch errors have relation to the jurisdiction of the Courtto 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 applyto a revision made under Article 227 of the Constitution ofIndia. That apart, on facts, I find that the said judgmentwill 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.

However, learned Principal District Munsif,Cuddalore is directed to dispose of the suit in O.S. No. 491of 2008 at the earliest, in any event, within a period of three months from the date of receipt of a copy of this order.

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.