{"id":250089,"date":"2004-09-20T00:00:00","date_gmt":"2004-09-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/kunchu-vs-vasu-master-on-20-september-2004"},"modified":"2017-03-26T02:21:28","modified_gmt":"2017-03-25T20:51:28","slug":"kunchu-vs-vasu-master-on-20-september-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/kunchu-vs-vasu-master-on-20-september-2004","title":{"rendered":"Kunchu vs Vasu Master on 20 September, 2004"},"content":{"rendered":"
Kerala High Court<\/div>\n
Kunchu vs Vasu Master on 20 September, 2004<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nCRP No. 637 of 2002()\n\n\n1. KUNCHU, S\/O.KURUNHIKKATTIL THAMI VYDYAR,\n                      ...  Petitioner\n2. GOPALAN VYDIAR, S\/O. -DO- IN -DO- -DO-.\n3. BHASKARAN VYDIAR, S\/O. -DO- IN -DO- -DO-\n\n                        Vs\n\n\n\n1. VASU MASTER, S\/O.KOOLERI KUNHAN VYDIAR,\n                       ...       Respondent\n\n2. UNNIKRISHNAN, S\/O.PALLATH CHATHUNNI,\n\n                For Petitioner  :SRI.S.V.BALAKRISHNA IYER\n\n                For Respondent  :SRI.T.KRISHNAN UNNI\nCoram\n\n Dated :     20\/09\/2004\n O R D E R\n<\/pre>\n
.PL 55
\n.SP 2
\n.TM 3
\n.BM 3
\n           P.R.RAMAN, J.@@
\n        j\n<\/p>\n
         ——————————–@@
\n        j
\n         C.R.P.NO.637 OF 2002 F@@
\n        j\n<\/p>\n
         ——————————–@@
\n        j
\n         Dated this the 20th day of September, 2004@@
\n        j
\n         O R D E R @@
\n        jCCCCCCCCCC
\n((HDR 0\n<\/p>\n
\t\t\t\t-#-\n<\/p>\n
\tC.R.P.NO.637\/2002<\/p>\n
))
\n.HE 1
\n        \tPlaintiffs in a suit O.S.No.71\/96 on the file
\n        of   the  Munsiff’s  Court,  Parappanangadi  are  the
\n        revision petitioners.  They laid the suit  seeking  a
\n        declaration  that  an  assignment deed and a purchase
\n        certificate   were   obtained   by   the   defendants
\n        fraudulently, without notice and in derogation of the
\n        specific legal   provisions.      As  such  the  said
\n        documents are void ab initio and not binding  on  the
\n        plaint schedule property.  They also sought for other
\n        consequential reliefs.  They paid the court fee under
\n        Section  25(b)  of  the  Kerala  Court Fees and Suits
\n        Valuation Act<\/a>.  The defendants  raised  an  objection
\n        regarding  the  valuation and also the court fee paid
\n        thereon.  Since the court below did not  decide  this
\n        question  as  a preliminary objection, the defendants
\n        preferred C.R.P.No.130\/2001 which was disposed of  by
\n        order dated  12\/1\/2001.  The operative portion of the
\n        order is  extracted  in  paragraph  8  of  the  order
\n        impugned in  this  revision.    Thereafter, the court
\n        below raised specific issues as to whether the  court
\n        fee  paid  is  correct and also whether the pecuniary
\n        jurisdiction shown  in  the  plaint  is  correct  and
\n        whether  this court has pecuniary jurisdiction to try
\n        this case?  These issues were  tried  and  the  court
\n        below  held  that  the  court  fee paid under Section
\n        25(b)<\/a> is not correct  and  that  the  plaintiffs  are
\n        liable to pay court fees under Section 40<\/a> of the Act.
\n        In  that  conection  it  also observed that the legal
\n        effect of the disputed purchase certificate cannot be
\n        taken away without setting aside the same.    On  the
\n        question  regarding the pecuniary jurisdiction of the
\n        court the court below held that the market value  for
\n        the  purpose  of Section 40<\/a> of the Court Fees Act has
\n        to be calculated as per Section 7(3)(a)<\/a>  of  the  Act
\n        and  that  the value shall be which the property will
\n        fetch on the date of the  institution  of  the  suit.
\n        The  Commissioner  was  found  to have calculated the
\n        market value of both the A and B schedule  properties
\n        at the  rate of Rs.2,000\/- per cent.  Thus A schedule
\n        property has to be valued at the rate Rs.54,700\/while
\n        that of the B schedule is Rs.16,700\/-.  However,  the
\n        valuation  of the house stood excluded, as the plaint
\n        A schedule did not include the house.  Regarding  the
\n        value of the other items includable it was found that
\n        it  will  exceed  Rs.1,00,000\/-  which  is beyond the
\n        jurisdiction of the Munsiff’s  Court.    Accordingly,
\n        the  court  below  found  that  it  has  no pecuniary
\n        jurisdiction to entertain the suit.  In  the  result,
\n        I.A.No.16\/2001  filed  by  the defendants was allowed
\n        holding that the plaintiffs are  liable  to  pay  the
\n        court fees under Section 40<\/a> of the Court Fees Act and
\n        that  the  court  has  no  pecuniary  jurisdiction to
\n        entertain the suit.  The  plaint  was  liable  to  be
\n        returned to the plaintiffs under Order VII Rule 10(A)
\n        of the  C.P.C.   It was also directed that intimation
\n        may be given to the plaintiffs on the decision of the
\n        court to return the plaint under Order  VII  Rule  10
\n        (A) of  the C.P.C.  The said order is under challenge
\n        in this revision.\n<\/p>\n
        \t2.   Before  going  to  the  merits  of   the
\n        contention  regarding  the  finding  on the aforesaid
\n        issues  an  objection  was   raised   regarding   the
\n        maintainability of the   C.R.P.     itself.    It  is
\n        therefore  necessary  to  decide  the   question   of
\n        maintainability of  the  C.R.P.    and  only if it is
\n        found that this  revision  is  maintainable,  further
\n        question  on the merits of the contention raised will
\n        arise for consideration.\n<\/p>\n
        \t3.  Order XLIII Rule 1 of the C.P.C.    deals
\n        with  appeals  from orders and as per the said order,
\n        an appeal shall lie from the following  orders  under
\n        the provisions of Section 104<\/a>, namely:\n<\/p>\n
        \t(a) an order  under  rule  10  of  Order  VII
\n        returning  a  plaint  to  be  presented to the proper
\n        Court (except where the procedure specified  in  rule
\n        10-A of Order VII has been followed).\n<\/p>\n
        \t4.   Therefore,  except  in   matters   where
\n        procedure  specified  in  Rule  10-A of Order VII, an
\n        order under Rule 10 of Order  VII  is  an  appealable
\n        order.   Hence what is the procedure to be considered
\n        is Rule 10-A of  Order  VII.    For  the  purpose  of
\n        convenience Rule 10-A is extracted hereunder:-
\n…………L…T…….T…….T…….T..T…..T……J
\n.SP 1<\/p>\n
            \t“10-A.   Power  of Court to fix a date of@@
\n                      AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
\n            appearance in the Court where plaint is to be@@
\n            AAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAAA
\n            filed after its return.  — (1) Where, in any@@
\n            AAAAAAAAAAAAAAAAAAAAAAA
\n            suit, after the defendant has  appeared,  the
\n            Court is of opinion that the plaint should be
\n            returned, it shall, before doing so, intimate
\n            its decision to the plaintiff.”\n<\/p>\n
……..L…….T…….T…….T…….T…….T…….T..J
\n.SP 2\n<\/p>\n
        \t5.  From the reading of the above  provision
\n        it  can be seen that for completion of the procedure
\n        as contemplated under Rule 10-A an intimation has to
\n        be given to the plaintiff by the court.  If it is of
\n        opinion that the plaint should be returned, once  an
\n        intimation  is  given  to  the  plaintiff,  then the
\n        plaintiff may make an application to the court below
\n        specifying that he proposes to  present  the  plaint
\n        after  its return and praying that the court may fix
\n        a date for appearance of the  parties  in  the  said
\n        court  and  requesting  that  notice  of the date so
\n        fixed may be given to him and to  the  defendant  as
\n        prescribed  under  Sub  Rule 2 of Rule 10-A of Order
\n        VII.  Where an application is made by the plaintiff,
\n        the court below, before  returning  the  plaint  and
\n        notwithstanding  that the order for return of plaint
\n        was made  by  it  on  the  ground  that  it  has  no
\n        jurisdiction  to try the suit, has to fix a date for
\n        appearance of the parties in the court in which  the
\n        plaint  is  proposed to be presented, and to give to
\n        the plaintiff and to the defendant  notice  of  such
\n        date for  appearance.    This  is what is prescribed
\n        under Sub Rule 3 of Rule 10-A.  As per Sub Rule 5 of
\n        Rule  10-A  where  the  application  made   by   the
\n        plaintiff under Sub Rule 2 is allowed, the plaintiff
\n        shall  not  be  entitled to appeal against the order
\n        returning the plaint.\n<\/p>\n
        \t6.  Therefore, it can be seen that not  only
\n        an  intimation  has  to be given to the plaintiff by
\n        the court but has further  to  be  followed  by  the
\n        plaintiff  by filing an application under Sub Rule 2
\n        and an order has to be passed under Sub Rule  3  and
\n        only when an application under Sub rule 2 is allowed
\n        by  the  court,  a  further appeal against the order
\n        returning the plaint is clearly barred by Sub Rule 5
\n        of Rule 10-A.  Therefore, even when  an  application
\n        filed   by   the  plaintiff  under  Sub  Rule  2  is
\n        disallowed by the court while passing an order under
\n        Sub Rule 3, still it will not be hit by Sub  Rule  5
\n        of Rule  10-A.    In  this  case, admittedly only an
\n        intimation   was   given   to   the   plaintiff   as
\n        contemplated under  Rule  10-A(1) of Order VII.  The
\n        further procedure contemplated in the same provision
\n        was however not adhered to by the plaintiff.  Hence,
\n        there was no occasion for the court to consider  any
\n        application or  to  pass  any  order thereon.  Order
\n        XLIII Rule 1 read with Rule 10-A (5)  of  Order  VII
\n        makes  it  clear  that  only  in  a  case  where  an
\n        application under Sub Rule 2 of Order  VII  of  Rule
\n        10-A  is  allowed  by  the court by passing an order
\n        that his right of appeal is taken away by virtue  of
\n        the exception  made  under Order XLIII Rule 1.  When
\n        statute  confers  a  right  of  appeal  but  however
\n        exempts  therefrom  a  particular type of order from
\n        the purview of the appeal provision, such  exception
\n        has  to be strictly construed so as not to take away
\n        the conferred   right   of   appeal.      On    true
\n        interpretation  of  the  above provision it is to be
\n        found that the present order is an appealable  order
\n        under Order XLIII Rule 1 of the C.P.C.  Similar view
\n        was  also  taken  by  the  Delhi  High  Court in the
\n        decision in Union of India v.  New  India  Assurance@@
\n                    CCCCCCCCCCCCCC     CCCCCCCCCCCCCCCCCCCCC
\n        Co.Ltd<\/a>.   and  another  (AIR 1997 Delhi 54) and also@@
\n        CCCCCCCCCCCCCCCCCCCCCC
\n        the  Karnataka   High   Court   in   M\/s.Instruments@@
\n                                             CCCCCCCCCCCCCCC
\n        Incorporated v.   M\/s.Industrial Cables (India) Ltd.@@
\n        CCCCCCCCCCCC      CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC<\/a>
\n        (AIR 1996 Karnataka 360)\n<\/p>\n
        \t7.  As per Section 115 of the C.P.C.  the  a
\n        revision will lie only in cases from which no appeal
\n        lies thereto.  Since the present order has been held
\n        to  be an appealable order the revision petition has
\n        to be held as not maintainable under Section 115  of
\n        the C.P.C.\n<\/p>\n
        \t8.  At this Juncture,  the  learned  Counsel
\n        for  the  petitioners Sri K.Jayakumar submitted that
\n        even if the revision is held to be not maintainable,
\n        this Court can exercise its power under Articles 226
\n        and 227 of the Constitution of India, when  manifest
\n        injustice  will  result  from  the order impugned in
\n        this revision.  He placed reliance on  the  decision
\n        of the Apex Court in Suryadev Rai v.  Ramchander Rai@@
\n                             CCCCCCCCCCCC     CCCCCCCCCCCCCC
\n        and others ((2003) 6 SCC 675).@@
\n        CCCCCCCCCC\n<\/p>\n
        \t9.   On  the  other hand the learned counsel
\n        appearing for the 1st respondent Sri  Krishnan  Unni
\n        contended  that the power under Articles 226 and 227
\n        of the Constitution of  India  is  a  constitutional
\n        power  and  an  extra-ordinary  power has no bounds.
\n        However, by a series of decisions of the Apex  Court
\n        and  this  Court  it is settled position that when a
\n        party has got a right of appeal, this Court will not
\n        exercise its extra-ordinary power  by  way  of  self
\n        imposed restriction.\n<\/p>\n
        \t10.   Having  heard both sides, the question
\n        to  be  considered  is  whether  this  Court  should
\n        exercise  its discretionary power under Articles 226
\n        and 227 of the Constitution of India when there is a
\n        statutory right of appeal.  It is true that a  right
\n        of appeal by itself may not be a bar to the exercise
\n        of  jurisdiction  of  the  constitutional remedy and
\n        cannot be taken away  by  any  statute.    This  was
\n        reiteratedly  held  in Suryadev Rai’s case ((2003) 6@@
\n                               CCCCCCCCCCCCCCCCCCC
\n        SCC 675) referred above.    At  the  same  time  for
\n        exercising   such  jurisdiction  there  are  certain
\n        parameters which are in the  form  of  self  imposed
\n        restriction.  Even in a case where an order impugned
\n        is   immediately   not   an   appealable  order  the
\n        correctness of which  however  could  be  challenged
\n        after  the  culmination  of  the proceedings, it was
\n        held that this is one  of  the  consideration  which
\n        will  waive  with  the  court  not  to  exercise the
\n        jurisdiction under the constitutional provision.\n<\/p>\n
        \t11.  In the decision of the  Apex  Court  in
\n        Sadhana Lodhi v.    National  Insurance Co.Ltd<\/a>.  and@@
\n        CCCCCCCCCCCCC       CCCCCCCCCCCCCCCCCCCCCCCCCCCCCCCC
\n        another (AIR 2003 SC 1561) a question  arose  as  to@@
\n        CCCCCCC
\n        when  there  is a right of appeal on limited grounds
\n        only, can it be said to be alternate  remedy.    The
\n        Apex  Court  held  that  the right of appeal being a
\n        statutory right and where the law provides remedy by
\n        way of filing an appeal though on  limited  grounds,
\n        the  grounds  of  challenge  cannot  be  enlarged by
\n        filing a petition under Articles 226 and 227 of  the
\n        Constitution.   It  is  true  that  in matters where
\n        miscarriage of justice is imminent, the bar  created
\n        for  entertaining  a  revision will not stand in the
\n        way of the court considering  the  grant  of  relief
\n        under  Articles  226  and 227 of the Constitution of
\n        India.  However, no such  situation  arises  in  the
\n        present case.    The  mere fact that the petitioners
\n        contend that the order passed by the court below  is
\n        illegal for which they have got a right of remedy by
\n        way  of  appeal  cannot  be  said  to  be  an  order
\n        resulting in miscarriage of  justice,  incapable  of
\n        correction at  the appellate stage.  The petitioners
\n        have thus  a  remedy  available  by  way  of  appeal
\n        against the  order  impugned in this revision.  I do
\n        not find that the  present  case  falls  under  this
\n        exceptional  category  warranting grant of relief at
\n        this stage by converting the C.R.P.  into that of  a
\n        writ petition.  Hence, this contention fails.\n<\/p>\n
        \t12.  It was contended by Sri K.   Jayakumar,
\n        that  the petitioners were bona fide prosecuting the
\n        matter ever since  the  C.R.P.    was  admitted  and
\n        pending  before  this  Court till now and as such in
\n        case an appeal is  preferred  before  the  Appellate
\n        Court,   the  delay  ought  to  be  condoned  and  a
\n        direction  be  issued  to  consider  the  matter  on
\n        merits.  It  is  true  that C.R.P.  itself was filed
\n        within  time  which  shows  the  bona  fide  of  the
\n        petitioners  in  prosecuting the matter and that the
\n        CRP was  pending  till  now  is  a  fact  which  can
\n        judicially be  taken notice of.  If that be so, I do
\n        not think that the Appellate Court will not  condone
\n        the  delay  and  entertain  the  matter  on  merits.
\n        However, it is  for  the  Appellate  Court  to  pass
\n        appropriate  orders  on  a  proper application being
\n        made in that behalf by the petitioner.
\n        \tC.R.P.   is  dismissed  subject  to  what is
\n        stated above.\n<\/p>\n
.SP 1<\/p>\n
        \t\t\t\t\tP.R.RAMAN,
\n        \t\t\t\t\t (JUDGE)@@
\n             j<\/p>\n
        kcv.\n<\/p>\n
.PA
\n……………………………L……T….T……T…….T…..J
\n((HDR 0
\n\t\t\t\t#<\/p>\n
))
\n.HE 2
\n                                  ” C.R. “@@
\n                                 jAAAAAAAA<\/p>\n
                                   P.R.RAMAN, J.@@
\n                                 j\n<\/p>\n
                                 ———————————-
\n                                 \tC.R.P.No.637 OF 2002 F\n<\/p>\n
                                 ———————————-\n<\/p>\n
                                 \t\tO R D E R@@
\n                                   CCCCCCCCC<\/p>\n
                                 \t\t20th September, 2004<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Kunchu vs Vasu Master on 20 September, 2004 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, … […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-250089","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nKunchu vs Vasu Master on 20 September, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/kunchu-vs-vasu-master-on-20-september-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Kunchu vs Vasu Master on 20 September, 2004 - 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