Zainabey Razak vs Noor Mohammed Rothan

Vaidiaungam, J.—This Civil Revision Petition has been referred to a Full Bench by Mr. Justice Kumara Pillai in view of the fact that a preliminary objection regarding the maintainability of the same was raised by the respondent at the time of hearing.

The defendant in O. S. No. 52 of 1954 of the Subordinate Judge''s Court, Palghat, is the petitioner in this Civil Revision Petition. He challenges the order of the learned Subordinate Judge, dated 26th March 1958 holding that the suit as framed comes within the ambit of Section 7(4) A. of the Indian Court Fees Act, 1870, as amended in the Madras State.

The contention raised by the defendant was that the suit comes within the ambit of suit provided u/s 7 Clause 5 of the said Court Fees Act. As mentioned earlier, the learned Judge overruled the objections of the defendant and held that the suit has been properly valued and court-fees paid as per the provisions of Section 7(4)A of the said Court Fees Act. It is this order that is-challenged by the defendant in this Civil Revision Petition.

At the time of hearing before Mr. Justice Kumara Pillai, objection appears to have been-taken by the respondent-plaintiff that in circumstances like this there is a finality attached to the-order of the lower court by virtue of Section 12 of the Court Fees Act, The order having been passed in favour of the plaintiff it is not open to the defendant to challenge the same by way of revision under Sec. 115 of the Code of Civil Procedure. The preliminary objection seems to have been raised by the plaintiff on the basis of the decision of the Travancore-Cochin High Court reported in Mathews. Kathanar v. Easus Kathanar 1955 Ker LT 17 : (AIR 1954 Trav-Co 178) (FB).

As the learned Judge felt that an authoritative pronouncement about the maintainability of a revision, at the instance of the defendant, under circumstances like this has to be given by the High. Court, he has referred the matter for hearing and disposal before a Full Bench,

The extent of finality attached to matters-like this and contemplated by Section 12 of the Court-Fees Act, 1870, has been considered and laid down by the Supreme Court in the decision reported in Nemi Chand and Another Vs. The Edward Mills Co. Ltd. and Another,

The decision of the Supreme Court as well as the scope of the decision of the Travancore-Cochin High Court referred to above, have all been. considered by one of us (Mr. Justice Vaidialingam) in Sankaran Nadar Lekshmanan Nadar Vs. Varathan Nadar Krishnan Nadar and Others, The question that arose in the said Civil Revision Petition was as to whether a defendant is entitled to challenge by way of revision an order of the trial court regarding the category under which a particular suit falls. A preliminary objection about the maintainability of the Civil Revision Petition by a defendant was raised before-the learned Judge in the said matter also.

The same is the position before us also because, according to the plaintiff the suit comes within the ambit of suits contemplated u/s 7(4)A of the Court Fees Act whereas according to the defendant-petitioner the suit comes within the class of suits mentioned in Section 7(5) of the Court Fees Act. The1 learned Subordinate Judge has he in favour of the plaintiff. Therefore, the question raised in this Civil Revision Petition is regarding the correctness of the decision of the learned Subordinate Judge that the suit comes within the ambit of Section 7(4)A of the Court Fees Act and that it does not come u/s 7(5) of the Court Fees Act.

After a consideration of the various decisions, the learned Judge has held in 1960 Ker LT 1297 : Sankaran Nadar Lekshmanan Nadar Vs. Varathan Nadar Krishnan Nadar and Others, that where questions relating to the category under which a particular suit comes have been wrongly decided that decision is open'' to be challenged in revision even at the instance of the defendant.

We are in full agreement with the decision of the learned Judge in ILR (1960) Kerala 891 : 1960 Ker LT 1297 : Sankaran Nadar Lekshmanan Nadar Vs. Varathan Nadar Krishnan Nadar and Others, We may also state that in proper cases the High Court can exercise its powers under Art. 227 of the Constitution of India.

We accordingly overrule the preliminary objection "raised by the plaintiff-respondent regarding the maintainability of this Civil Revision Petition. As the entire Civil Revision Petition has been referred to us we will deal with the merits of the revision itself.

Coming to the merits of the Civil Revision Petition, as mentioned earlier, the learned Judge has held that the suit comes within the ambit of suits contemplated u/s 7(4)A of the Court Fees Act, 1870.

The learned Subordinate Judge, in our Opinion, has considered the matter, having due regard to the form of the plaint and the provisions of Section 7(4)A. The learned counsel for the petitioner was not able to satisfy us that the view of the learned Subordinate Judge is in any way wrong. We are satisfied that there is absolutely no merit in this Civil Revision Petition and it is accordingly dismissed with costs of the respondent.

As the suit itself is one of 1954, the learn ed Subordinate Judge is directed to take it up and give it a very expeditious disposal.