Whether order rejecting application for return of plaint is revisable?

The decision of the Supreme Court reported as (2003) 6 SCC

659, Shiv Shakti Co-op. Housing Society, Nagpur Vs. Swaraj

Developers & Ors., illuminates the Court as to which order would be

revisable and which would not be revisable and that orders which are

not revisable are amenable to challenge under Article 227 of the

Constitution of India. In paragraph 32 of the decision it has been held

as under:

“32. A plain reading of Section 115 as it stands makes it

clear that the stress is on the question whether the order in

favour of the party applying for revision would have given

finality to suit or other proceeding. If the answer is “yes”

then the revision is maintainable. But on the contrary, if the

answer is “no” then the revision is not maintainable.

Therefore, if the impugned order is interim in nature or

does not finally decide the lis, the revision will not be

maintainable. The legislative intent is crystal clear. Those

orders, which are interim in nature, cannot be the subject

matter of revision under Section 115. There is marked

distinction in the language of Section 97(3) of the Old

Amendment Act and Section 32(2)(i) of the Amendment

Act. While in the former, there was clear legislative intent

to save applications admitted or pending before the

amendment came into force. Such an intent is significantly

absent in Section 32(2)(i). The amendment relates to

procedures. No person has a vested right in a course of

procedure. He has only the right of proceeding in the

manner prescribed. If by a statutory change the mode of

procedure is altered, the parties are to proceed according to

the altered mode, without exception, unless there is a

different stipulation.”

10. Following the law declared by the Supreme Court in Shiv Shakti

Co-op. Housing Society , we answer the reference by holding that an

order rejecting an application filed by a party in a suit praying that the Court, having no territorial jurisdiction, should return the plaint, is not a revisable order and challenge to such order has to be by way of a proceeding under Article 227 of the Constitution of India.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO. 800 OF 2010

Accent Construction & Contractors Pvt. Ltd.  Vs. M/s. Shah Nagindas Mancharam & Sons

CORAM : PRADEEP NANDRAJOG, C.J. &

SMT. BHARATI DANGRE, J.

DATE : 3 rd DECEMBER, 2019 .

ORAL JUDGMENT (Per Pradeep Nandrajog, CJ)

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Whether order demanding additional court fees is revisable?

 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

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