Hem Raj v. Harchet Singh

A.P. Chowdhri, J. These revision petitions (CR Nos. 2792 and 3717 of 1991) raise common questions of law and arise out of substantially identical facts and circumstances and are, therefore, being disposed by a common order. Hem Raj petitioner instituted Civil Suit No. 247 of 1989 for the recovery of compensation/damages. He claimed damages on account of the injuries suffered by him. For purposes of jurisdiction, he valued the suit at Rs. 1 lakh and odd and for purposes of court fee at Rs. 500/-. He also filed Civil Suit No. 246 of 1988 against Gurmail Singh and others for compensation/damages amounting to Rs. 2.50, 000/- on account of damage caused to the petitioner's crops. For purposes of jurisdiction, he valued the suit at Rs. 2,50,000/- but for purposes of court-fee he tentatively valued the suit at Rs. 500/-. In both the suits objection was taken by the defendants that the suit had been grossly under-valued for purposes of court-fee. One of the issues framed is relating to valuation of the suit for purposes of court-fee and jurisdiction. In Civil Suit No. 247 of 1989 an application was made on behalf of the defendants that issue relating to court-fee be decided as a preliminary issue. By order dated December 19, 1989, the Subordinate Judge 1st Class, who was dealing with the suit at that time, dismissed the application with the observation that the said issue could not be treated as a preliminary issue and would have to be decided along with the remaining issues. There after in that suit the parties concluded their evidence and the case became ripe for final arguments. In the other suit No. 246 of 1988 also the parties concluded their evidence on all the issues and the stage for final arguments was reached, It was at That stage that the learned Additional Senior Subordinate Judge took up issue relating to court-fee and decided the same holding that the plaint was deficient in court-fee to the extent of Rs. 3270/-in the case of suit No. 247 of 1989 and Rs. 4734/- in the case of suit No. 246 of 1988. Hence these revision petitions. After hearing Mr. S.N. Chopra for the petitioner and Mr. J.C. Nagpal for the respondents, I find that the present revision petitions give rise to three questions. These are: (1) Whether the Court could review the order suo moto? (2) Whether the issue relating to valuation of suit for purposes of court-fee can be treated as a preliminary issue? (3) Whether the decision of the Court holding the suit to be under-valued and determining the amount by which the suits are deficient in court-fee at the pre-final stage is correct? There is no dispute that by order dated December 19, 1989 the Subordinate Judge 1st Class had dismissed the respondents application for treating the issue regarding court-fee in suit No. 247 of 1989 as a preliminary issue. That order having not been assailed in revision holds the field. The question which falls for consideration is whether it was open to the learned Additional Senior Subordinate Judge to review the order of his predecessor suo moto and proceed to decide the said issue as a preliminary issue. The contention of Mr. S.N. Chopra is that the learned Additional Senior Subordinate Judge had no jurisdiction to review the order of his predecessor. Mr. J.C. Nagpal has not been able to put forward any reason to justify reviewing of the order by the successor. After careful consideration of the respective submissions of the learned counsel, I find great force in the contention of Mr. Chopra. In my view, the law is fairly well settled that in order to give finality to orders passed by the Court, it is not open to the court to reopen a matter at the request of one or the other party. Unless a case is made out for review in terms of order 47, rule 1 of the code of civil procedure (hereinafter referred to as 'the code'). It follows that in so far as that Court is concerned, the order once passed must hold the field till it is reviewed in terms of the provisions relating to review. Reference in this connection may be made to Jiwao Dass v. Rakhiiini Dingy and another, AIR 1941 Lahore 212, Mohammad Abdul Rauf and others. Nostt. Khadeja and others, AIR 1984 Patna 180 and Calcutta Properties Limited v. S.N. Chakrabortty, AIR 1988 Calcutta. This brings me to a consideration of the second question posed above. rule 2 of order 14 of the code lays down the general rule that the Court shall pronounce judgment on all the issues notwithstanding the fact that a case may be disposed of on a preliminary issue. This rule is subject to only one exception and that is that an issue of law only may be tried as a preliminary issue provided it relates to jurisdiction of the Court or to a bar to the suit created by any law for the time being in force. The object of making the above provision is to avoid delay in the final disposal of the suit. If the suit is disposed of on a preliminary issue and the finding of the trial Court is reversed by the superior Court, the suit necessarily takes much longer to dispose of than in a case where all the issues arising in the suit have been disposed of. Where the question raised was a mixed question of law and fact, it was held that issue could not be heated as a preliminary issue. (See Food Corporation of India v. M/S. Sadhu Singh Gauman and Sons and others) 1990 PLJ 105 and Smt. Ram Kali and others v. Sohan Lal 1984 PLJ 6001Sujir Keshav Nayak v. Sujir Ganesh Nayak, 1992 (1) SPJ 107, recently decided by the apex Court, conveys the impression that issue relating to court-fee is to be decided as a preliminary issue, but what is laid down by their Lordships is that where the question of court-fee is linked with jurisdiction, the defendant is entitled to raise the objection and in that case the Court is required to decide the same as a preliminary issue. The reason for the above conclusion was that the plaintiff could not be permitted to fix the value for purposes of court-fee and jurisdiction so as to bring the suit within the jurisdiction of Court of a particular grade. In the facts of the present case, on the other hand, however all along the suits had been dealt with by the subordinate Judge 1st Class or Additional Senior Subordinate Judge who exercise powers of Subordinate Judge 1st Class i.e. with unlimited pecuniary jurisdiction. The trial Court has tried to get over this difficulty by pointing out that the issue regarding court-fee was not being decided as a preliminary issue but was being decided on merits. This is totally unacceptable, for the simple reason that even preliminary issues are required to be decided on merits. For these reasons, it is held that it was not open to the trial Court to treat the issue regarding court fee as a preliminary issue. Coming to the third point, the law is fairly well settled that if the Court is it self unable to say what the correct valuation of the relief is it cannot require the plaintiff to correct the valuation that has been made by him. In such a case the Court has no other alternative than to accept the plaintiff's valuation tentatively. In M/S Commercial Aviation and Travel Company and others v. Mrs. Vimla Pannalal, AIR 1988 SC 1636 their Lordships referred to a Five Judge Bench decision in S. Rm.Ar.S.Sp. Sathappa Chettiar v. S. Rm. Ar. Rm. Ramanathan Chettiar, 1958 SC 245 at pp. 251-52 and extracted the relevant observations, part of which are as under :- "If the scheme laid down for the computation of fees payable in suite covered by the several sub-S.S of Section 7 is considered it would be clear that in respect of suits falling under sub-S. (iv), a departure has been made and liberty has been given to the plaintiff to value his claim for the purposes of court-fees. The theoretical basic of this provision appears to be that in cases in which the plaintiff is given the option to value his claim, it is really difficult to value the claim within any precision or definiteness............" The same view has been reiterated in various decisions of the apex Court up to the recent decision in Sujir Keshav Nayak's case (supra). Mr. J.C. Nagpal, learned counsel for the respondents, submitted that the various authorities cited by Mr. Chopra related to cases of rendition of accounts. He submitted that in suits relating to rendition of accounts the statute itself expressly gave power to the plaintiff to value the relief which he claims, He further pointed out that there was no such enabling provision in so far as suit for the recovery of compensation/damages falling in section 7 (1) of the court-fees act was concerned. In my view, this is a distinction without, a difference. In the case of the amount of compensation, there is no objective standard available which can help determine the amount for which the plaintiff has to value the relief claimed by him. In the nature of things, the valuation put by the plaintiff is tentative and in view of the settled position of law, the same cannot be disputed. It will be further seen that the decision of the Supreme Court in Smt. Tara Devi v. Sri Thakur Radha Krishna Maharj and another, AIR 1987 SC 2085 related to the question of Court-fee payable under section 7(iv) (c) of the court-fees act and in Gopal Krishana Pillai and others v. Meenakshi Ayal and others, AIR 1967 Sc 155 the question related to recovery of mesne profits and in both these instances the suits related to suits other than one for rendition of accounts. For the foregoing reasons, both the revision petitions are allowed and the impugned order of the trial Court are set aside. Before parting with this judgment, I am constrained to observe that the illegal course adopted by the trial Court has considerably delayed the final decision of these suits, which were otherwise ripe for final arguments. Having regard to the clear mandate of law laid down in order 14, rule 2 of the code, it is the duty of the Courts to dispose of all the issues except those which fall within the exception engrafted in sub-rule (2) of the said Rule. Parties through their counsel are directed to appear in the trial Court on March 27, 1992, for further proceedings according to law. .