IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRP No. 637 of 2002()
1. KUNCHU, S/O.KURUNHIKKATTIL THAMI VYDYAR,
... Petitioner
2. GOPALAN VYDIAR, S/O. -DO- IN -DO- -DO-.
3. BHASKARAN VYDIAR, S/O. -DO- IN -DO- -DO-
Vs
1. VASU MASTER, S/O.KOOLERI KUNHAN VYDIAR,
... Respondent
2. UNNIKRISHNAN, S/O.PALLATH CHATHUNNI,
For Petitioner :SRI.S.V.BALAKRISHNA IYER
For Respondent :SRI.T.KRISHNAN UNNI
Coram
Dated : 20/09/2004
O R D E R
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.HE 1
Plaintiffs in a suit O.S.No.71/96 on the file
of the Munsiff’s Court, Parappanangadi are the
revision petitioners. They laid the suit seeking a
declaration that an assignment deed and a purchase
certificate were obtained by the defendants
fraudulently, without notice and in derogation of the
specific legal provisions. As such the said
documents are void ab initio and not binding on the
plaint schedule property. They also sought for other
consequential reliefs. They paid the court fee under
Section 25(b) of the Kerala Court Fees and Suits
Valuation Act. The defendants raised an objection
regarding the valuation and also the court fee paid
thereon. Since the court below did not decide this
question as a preliminary objection, the defendants
preferred C.R.P.No.130/2001 which was disposed of by
order dated 12/1/2001. The operative portion of the
order is extracted in paragraph 8 of the order
impugned in this revision. Thereafter, the court
below raised specific issues as to whether the court
fee paid is correct and also whether the pecuniary
jurisdiction shown in the plaint is correct and
whether this court has pecuniary jurisdiction to try
this case? These issues were tried and the court
below held that the court fee paid under Section
25(b) is not correct and that the plaintiffs are
liable to pay court fees under Section 40 of the Act.
In that conection it also observed that the legal
effect of the disputed purchase certificate cannot be
taken away without setting aside the same. On the
question regarding the pecuniary jurisdiction of the
court the court below held that the market value for
the purpose of Section 40 of the Court Fees Act has
to be calculated as per Section 7(3)(a) of the Act
and that the value shall be which the property will
fetch on the date of the institution of the suit.
The Commissioner was found to have calculated the
market value of both the A and B schedule properties
at the rate of Rs.2,000/- per cent. Thus A schedule
property has to be valued at the rate Rs.54,700/while
that of the B schedule is Rs.16,700/-. However, the
valuation of the house stood excluded, as the plaint
A schedule did not include the house. Regarding the
value of the other items includable it was found that
it will exceed Rs.1,00,000/- which is beyond the
jurisdiction of the Munsiff’s Court. Accordingly,
the court below found that it has no pecuniary
jurisdiction to entertain the suit. In the result,
I.A.No.16/2001 filed by the defendants was allowed
holding that the plaintiffs are liable to pay the
court fees under Section 40 of the Court Fees Act and
that the court has no pecuniary jurisdiction to
entertain the suit. The plaint was liable to be
returned to the plaintiffs under Order VII Rule 10(A)
of the C.P.C. It was also directed that intimation
may be given to the plaintiffs on the decision of the
court to return the plaint under Order VII Rule 10
(A) of the C.P.C. The said order is under challenge
in this revision.
2. Before going to the merits of the
contention regarding the finding on the aforesaid
issues an objection was raised regarding the
maintainability of the C.R.P. itself. It is
therefore necessary to decide the question of
maintainability of the C.R.P. and only if it is
found that this revision is maintainable, further
question on the merits of the contention raised will
arise for consideration.
3. Order XLIII Rule 1 of the C.P.C. deals
with appeals from orders and as per the said order,
an appeal shall lie from the following orders under
the provisions of Section 104, namely:
(a) an order under rule 10 of Order VII
returning a plaint to be presented to the proper
Court (except where the procedure specified in rule
10-A of Order VII has been followed).
4. Therefore, except in matters where
procedure specified in Rule 10-A of Order VII, an
order under Rule 10 of Order VII is an appealable
order. Hence what is the procedure to be considered
is Rule 10-A of Order VII. For the purpose of
convenience Rule 10-A is extracted hereunder:-
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“10-A. Power of Court to fix a date of@@
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appearance in the Court where plaint is to be@@
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filed after its return. — (1) Where, in any@@
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suit, after the defendant has appeared, the
Court is of opinion that the plaint should be
returned, it shall, before doing so, intimate
its decision to the plaintiff.”
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5. From the reading of the above provision
it can be seen that for completion of the procedure
as contemplated under Rule 10-A an intimation has to
be given to the plaintiff by the court. If it is of
opinion that the plaint should be returned, once an
intimation is given to the plaintiff, then the
plaintiff may make an application to the court below
specifying that he proposes to present the plaint
after its return and praying that the court may fix
a date for appearance of the parties in the said
court and requesting that notice of the date so
fixed may be given to him and to the defendant as
prescribed under Sub Rule 2 of Rule 10-A of Order
VII. Where an application is made by the plaintiff,
the court below, before returning the plaint and
notwithstanding that the order for return of plaint
was made by it on the ground that it has no
jurisdiction to try the suit, has to fix a date for
appearance of the parties in the court in which the
plaint is proposed to be presented, and to give to
the plaintiff and to the defendant notice of such
date for appearance. This is what is prescribed
under Sub Rule 3 of Rule 10-A. As per Sub Rule 5 of
Rule 10-A where the application made by the
plaintiff under Sub Rule 2 is allowed, the plaintiff
shall not be entitled to appeal against the order
returning the plaint.
6. Therefore, it can be seen that not only
an intimation has to be given to the plaintiff by
the court but has further to be followed by the
plaintiff by filing an application under Sub Rule 2
and an order has to be passed under Sub Rule 3 and
only when an application under Sub rule 2 is allowed
by the court, a further appeal against the order
returning the plaint is clearly barred by Sub Rule 5
of Rule 10-A. Therefore, even when an application
filed by the plaintiff under Sub Rule 2 is
disallowed by the court while passing an order under
Sub Rule 3, still it will not be hit by Sub Rule 5
of Rule 10-A. In this case, admittedly only an
intimation was given to the plaintiff as
contemplated under Rule 10-A(1) of Order VII. The
further procedure contemplated in the same provision
was however not adhered to by the plaintiff. Hence,
there was no occasion for the court to consider any
application or to pass any order thereon. Order
XLIII Rule 1 read with Rule 10-A (5) of Order VII
makes it clear that only in a case where an
application under Sub Rule 2 of Order VII of Rule
10-A is allowed by the court by passing an order
that his right of appeal is taken away by virtue of
the exception made under Order XLIII Rule 1. When
statute confers a right of appeal but however
exempts therefrom a particular type of order from
the purview of the appeal provision, such exception
has to be strictly construed so as not to take away
the conferred right of appeal. On true
interpretation of the above provision it is to be
found that the present order is an appealable order
under Order XLIII Rule 1 of the C.P.C. Similar view
was also taken by the Delhi High Court in the
decision in Union of India v. New India Assurance@@
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Co.Ltd. and another (AIR 1997 Delhi 54) and also@@
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the Karnataka High Court in M/s.Instruments@@
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Incorporated v. M/s.Industrial Cables (India) Ltd.@@
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(AIR 1996 Karnataka 360)
7. As per Section 115 of the C.P.C. the a
revision will lie only in cases from which no appeal
lies thereto. Since the present order has been held
to be an appealable order the revision petition has
to be held as not maintainable under Section 115 of
the C.P.C.
8. At this Juncture, the learned Counsel
for the petitioners Sri K.Jayakumar submitted that
even if the revision is held to be not maintainable,
this Court can exercise its power under Articles 226
and 227 of the Constitution of India, when manifest
injustice will result from the order impugned in
this revision. He placed reliance on the decision
of the Apex Court in Suryadev Rai v. Ramchander Rai@@
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and others ((2003) 6 SCC 675).@@
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9. On the other hand the learned counsel
appearing for the 1st respondent Sri Krishnan Unni
contended that the power under Articles 226 and 227
of the Constitution of India is a constitutional
power and an extra-ordinary power has no bounds.
However, by a series of decisions of the Apex Court
and this Court it is settled position that when a
party has got a right of appeal, this Court will not
exercise its extra-ordinary power by way of self
imposed restriction.
10. Having heard both sides, the question
to be considered is whether this Court should
exercise its discretionary power under Articles 226
and 227 of the Constitution of India when there is a
statutory right of appeal. It is true that a right
of appeal by itself may not be a bar to the exercise
of jurisdiction of the constitutional remedy and
cannot be taken away by any statute. This was
reiteratedly held in Suryadev Rai’s case ((2003) 6@@
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SCC 675) referred above. At the same time for
exercising such jurisdiction there are certain
parameters which are in the form of self imposed
restriction. Even in a case where an order impugned
is immediately not an appealable order the
correctness of which however could be challenged
after the culmination of the proceedings, it was
held that this is one of the consideration which
will waive with the court not to exercise the
jurisdiction under the constitutional provision.
11. In the decision of the Apex Court in
Sadhana Lodhi v. National Insurance Co.Ltd. and@@
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another (AIR 2003 SC 1561) a question arose as to@@
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when there is a right of appeal on limited grounds
only, can it be said to be alternate remedy. The
Apex Court held that the right of appeal being a
statutory right and where the law provides remedy by
way of filing an appeal though on limited grounds,
the grounds of challenge cannot be enlarged by
filing a petition under Articles 226 and 227 of the
Constitution. It is true that in matters where
miscarriage of justice is imminent, the bar created
for entertaining a revision will not stand in the
way of the court considering the grant of relief
under Articles 226 and 227 of the Constitution of
India. However, no such situation arises in the
present case. The mere fact that the petitioners
contend that the order passed by the court below is
illegal for which they have got a right of remedy by
way of appeal cannot be said to be an order
resulting in miscarriage of justice, incapable of
correction at the appellate stage. The petitioners
have thus a remedy available by way of appeal
against the order impugned in this revision. I do
not find that the present case falls under this
exceptional category warranting grant of relief at
this stage by converting the C.R.P. into that of a
writ petition. Hence, this contention fails.
12. It was contended by Sri K. Jayakumar,
that the petitioners were bona fide prosecuting the
matter ever since the C.R.P. was admitted and
pending before this Court till now and as such in
case an appeal is preferred before the Appellate
Court, the delay ought to be condoned and a
direction be issued to consider the matter on
merits. It is true that C.R.P. itself was filed
within time which shows the bona fide of the
petitioners in prosecuting the matter and that the
CRP was pending till now is a fact which can
judicially be taken notice of. If that be so, I do
not think that the Appellate Court will not condone
the delay and entertain the matter on merits.
However, it is for the Appellate Court to pass
appropriate orders on a proper application being
made in that behalf by the petitioner.
C.R.P. is dismissed subject to what is
stated above.
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20th September, 2004
