Shri Jiwandass vs Shri Anoop Kumar And Others
2000 Latest Caselaw 779 Del

ORDER

Khan, J.

1. Petitioner filed a suit for possession and mense profits. He valued the suit property at Rs. 25,000 and Trial court found it undervalued. The Court assessed the valuation at Rs.8 Lakhs and holding it had no jurisdiction to try it rejected the "Suit".

2. Petitioner has filed this revision petition to assail the order. It is submitted that even if it was assumed that trial court had correctly determined the valuation but once it had found that it was beyond its pecuniary jurisdiction, it ought to have returned the plaint under Order 7 and Rule 10 or rejected it after affording an opportunity to plaintiff to pay the deficient court fee. L/C for Respondent, Mr. Malik, however, challenged the maintainability of the Revision Petition itself. He submitted that after rejecting the suit Trial Court had passed a decree which was appalled and no revision could lie against such decree.

3. The submission of Mr. Malik, though, attractive sounds highly technical to me because what he calls a decree is based on an order which is neither here nor there. The order is patently illegal and represents an error apparent on the face of record. As appears from the terms of order, Trial court had strangely ousted its jurisdiction first and then "rejected"/dismissed the suit. The order impugned was repugnant to established legal position and norms and was void and honest on which no decree could be based. Such order which occassioned failure of justice was consequently revisable and so was any follow-up decree passed on it.

4. I find it difficult to reconcile the terms of impugned order which is a contradiction in terms. If the Trial Judge had assessed the valuation and found that it was beyond its jurisdiction to try the suit, it should have returned the plaint to plaintiff for being presented before a Competent Court. Or else if it was within its jurisdictional limits, it could have rejected the plaint under Order 7 Rule 11 only after affording a chance to him to pay the deficit court fee. What is worse is that Trial Judge had adopted a mixed middle course by rejecting the "Suit", perhaps meaning plaint after finding that it had no pecuniary jurisdiction to try the suit.

5. The approach and understanding of the Learned Judge leaves much to be desired. He has betrayed lack of knowledge of even elementary provision of law and in the process has created an avoidable mess impinging on the course of justice. I accordingly hold that a revision under Section 115 is maintainable even against a decree which is found to be based on a patently illegal and abnoxious order, rendering it a nullity. Suit No. 909/96 is accordingly revived and Trial court to reconsider the issue of valuation of the suit and assess it afresh after hearing parties and then proceed to pass appropriate orders in the light of relevant provision of CPC.

6. Parties to appear before trial court on 4th September, 2000.