Smt Pinki Devi And Another vs Kana Ram And Others
2023 Latest Caselaw 4328 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

           S.B. Civil Miscellaneous Appeal No. 4761/2012

1. Smt Pinki Devi Wife of Sh. Satyendra Singh aged about 28
years
2. Satyendra Singh Meena Son of Shri Ramnath Ji Meena aged
35 years
Both resident of Plot No.352, Balanand Ji Ka Rasta, Near
Saraswati School, Chandpole Bazar, Jaipur City, Jaipur
                                    ----Appellant/Defendant No.1 and 2
                                    Versus
1. Kanaram son of Shri Ghasiram
2. Choti D/o Shri Ghasiram
Both residents of Village Gunawta, Tehsil Amer District Jaipur
                                                   ----Respondents/Plaintiffs

3. Tehsildar, Tehsil Amer District Jaipur

4. Sub Registrar Amer, District Jaipur

For Appellant(s) : Mr. Manish Sharma, Adv.

For Respondent(s) : Mr. Devendra Kumar Chauhan, Adv.

    HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA

                                Judgment

DATE OF JUDGMENT                                                28/08/2023

Instant appeal has been filed by the appellants-defendant

Nos.1 and 2 (for short 'the defendants') against the order dated

24.08.2012 passed by District Judge, Jaipur District, Jaipur in

Review Application No.66A/2012, whereby review application filed

by the respondents-plaintiffs (for short 'the plaintiffs') for revision

of the order dated 01.09.2008 has been allowed and matter has

been directed to be restored subject to payment of deficit court

fees upto 10.09.2012.

Learned counsel for the defendants submits that the trial

court has passed the impugned order dated 24.08.2012 contrary

to law and material available on record. Learned counsel for the

(2 of 3) [CMA-4761/2012]

defendants also submits that plaintiffs had filed a suit for

declaration and permanent injunction before the trial court on

deficit court fees of Rs.50,436/-. Trial court had given ample

opportunity to pay deficit court fees to the plaintiffs but plaintiffs

as well as their counsel did not pay the deficit court fee. So, trial

court vide order dated 01.09.2008 dismissed the plaintiffs' suit

under Order 7 Rule 11 CPC. Learned counsel for the defendants

also submits that the plaintiffs had not filed an appeal against the

impugned order and filed a review petition before the trial court

on 14.05.2012 after a lapse of three years and nine months. The

trial court has arbitrarily allowed the review petition vide order

dated 24.08.2012 and acted as an appellate court.

Learned counsel for the defendants also submits that the

scope of review is very limited but trial court exercised appellate

court's power in the grab of review. So, order of the trial court is

patently illegal and liable to be set aside.

Learned counsel for the defendants has placed reliance upon

the judgment of Hon'ble Apex Court in the case of A. Nawab

John & Ors. Vs. V. N. Subramaniyam reported in (2012) 7

SCC 738 and (2).

Learned counsel for the plaintiffs has opposed the arguments

advanced by learned counsel for the defendants and submitted

that trial court rightly exercised the review power because

plaintiffs were not aware of the court's order. Their advocate had

not informed them regarding order dated 01.09.2008. So, they

could not pay the deficit court fees. So, trial court rightly allowed

the review petition filed by the plaintiffs. Learned counsel for the

plaintiffs also submitted that after that, defendants have filed

(3 of 3) [CMA-4761/2012]

written statement and trial court has framed the issues. So,

matter can be decided on merits after adducing evidence of the

parties. So, appeal be dismissed.

I have considered the arguments advanced by learned

counsel for the defendants as well as learned counsel for the

plaintiffs and perused the impugned order.

It is an admitted position that trial court had given ample

opportunities to submit the deficit court fees to the plaintiffs but

plaintiffs failed to submit the deficit court fees before the trial

court. Thus, trial court rejected the suit under Order 7 Rule 11

CPC vide order dated 01.09.2008. After that, trial court wrongly

allowed the review petition filed by the plaintiffs and extended the

time to deposit the deficit court fee vide order dated 24.08.2012.

In my considered opinion, review has very limited scope and

review petition was not maintainable. Rather, the plaintiffs had to

prefer an appeal against the order of the trial court dated

01.09.2008. The order of the trial court is patently illegal and trial

court acted as an appellate court. So, present appeal deserves to

be allowed.

The Civil Miscellaneous Appeal filed by the defendants is

allowed. The order of the trial court dated 24.08.2012 is set aside.

Pending application(s), if any, stand(s) disposed of.

(NARENDRA SINGH DHADDHA),J

Jatin /143

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