The learned counsel for the mortgagor (respondent 1) urged that an order demanding court-fees would not be revisable unless it affects the question of jurisdiction. In this connection, reliance is placed on the observations of a Division Bench of this Court in Wamanrao v. Vidyacharan, ILR (1952) Nag 527: (AIR 1953 Nag 122) wherein Sinha C. J. (as he then was) and Mudholkar J. (as he then was) laid down that an erroneous decision on a question of law which has no bear-
ing on the question of jurisdiction would not be revisable by the High Court exercising its powers under Section 115 of the Civil Procedure Code. So far as that proposition is concerned, it is in accordance with the later observations of their Lordships of the Supreme Court in Keshardeo v. Radha Kissen, 1953 SCR 136: (AIR 1953. SC 23), The question may arise in a case where additional court-fees are demanded and a claim or a counter-claim is rejected for non-payment of such court-fees.
9. In such a case, in my opinion, the question of jurisdiction would be involved as laid down by a Full Bench of this Court in Balaji Dhumnaji v. Mst. Mukta Bai, ILR (1938) Nag 106: (AIR 1938 Nag 122), wherein Stone C. J., Bose J. and Digby J. laid down that an order demanding additional court-fees on a memorandum of appeal would be revisable, though one accepting the court-fees would not be so revisable. The reason is obvious. In a case where, court-fees are demanded and the claim or the! counter claim is rejected for non-payment of court-fees, the Court would he exercising its jurisdiction illegally or would be refusing to exercise its jurisdiction properly and legally, if the order demanding court-fees is not warranted by the provisions of the court-fees Act. Therefore, there is no substance in ihe contention of the learned counsel for the first respondent that such an order would not be revisable under Section 115 of the Civil Procedure Code. I am of opinion that even having in view the dictum of their Lordships of the Supreme Court in 1953 SCR 130: (AIR 1953 SC 23), such an order would be revisable in exercise of revisions powers.
Madhya Pradesh High Court
Motilal Laxman And Ors. vs Purshottam Damodar And Ors. on 16 July, 1964
Equivalent citations: AIR 1966 MP 330
Bench: P Tare
