Judgment:
B.S. Chauhan, J.
1. This revision petition has been filed against the order dated 11.7.2002 passed by the trial Court rejecting the application of the petitioner under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (for short, 'the Code') on the ground that the court fee ought to have been paid by the plaintiff/non-petitioners in view of the provisions of Section 20 of the Rajasthan Court Fee and Suits Valuation Act, 1961 (for short, 'the Act') and the Court below has committed material irregularity in exercise of its jurisdiction in holding that it could have been valued under Section 27 of the Act and the court fee paid thereon was sufficient for the reason that it was a suit for declaration that the lease deed executed by the defendant/non-petitioner Shri Narendra Singh Maharaj in favour of defendant-petitioner was void and there was a further prayer for possession of the suit property.
2. The facts and circumstances giving rise to this case are that the petitioner had been leased out the suit property by non-petitioner No. 4 for a particular period and non-petitioners No. 1 to 3 filed a suit seeking declaration that the lease deed executed by non-petitioner No. 4 in favour of defendant-petitioner be held to be void being without any authorisation and for possession of the suit premises. In the said suit, defendant-petitioner filed an application under Order 7 Rule 11 of the Code to reject the plaint as the subject matter of the suit had not been properly valued as it could have been valued under the provisions of Section 20 of the Act and not under Section 27 of the Act as has been done by the plaintiffs non-petitioners. The said application has been rejected by the learned trial Court. Hence this revision petition.
3. The issue involved herein is no more res judicata. In Bhikamdas Balaram and Ors. v. Motilal Gambhirmal, : AIR1958Bom307 the Bombay High Court held that an erroneous decision to the effect that a suit fell under a particular category for the purpose of court fee, was open to revision for the reason that the jurisdiction of the Court might be affected by the decision.
4. In Zainabey Razak v. Noor Mohammed Rothan, : AIR1961Ker146 a Full Bench of Kerala High Court held that revision at the behest of the defendant against the order passed by the trial Court deciding the suit, fell under a particular category was valid. The same view was reiterated in Sankaran Nadar Lekshmanan Nadar v. Varathan Nadar Krishnan Nadar and Ors., : AIR1961Ker142 .
5. A Full Bench of the Allahabad High Court, however, in Messers. Gupta and Co. v. Messers. Kripa Ram Brothers, : AIR1934All620 held that a decision in the trial of a suit as to the amount of court fee, is not an independent proceeding and, therefore, not open to revision. Similarly, in Lachhmi Narayan v. Secretary of State, AIR 1934 Oudh 396 the Oudh High Court held that an order demanding deficit court fee from the plaintiff was not open to challenge.
6. In S. Rm. Ar. S. Sp. Sathappa Chettiar v. S. Ar. Rm. Ramanathan Chettiar, : [1958]1SCR1021 the Hon'ble Supreme Court held as under:
Normally the dispute between the ligitant and the Registry in respect of court fee, arises at the initial stage of the presentation of the plaint or the appeal and the defendant or the respondent is usually not interested in such a dispute unless the question of payment of court fees involves also the question of jurisdiction of the Court either to try the suit or to entertain the appeal.
7. In Sri Rathnavarmaraja v. Smt. Vimla, : [1961]3SCR1015 the Hon'ble Supreme Court held that whether proper court fee has been paid or not, is an issue between the plaintiff and the State and that the defendant has no right to question it in a revision. The said judgment of the Apex Court re-considered and approved by it in Shamsher Singh v. Rajinder Prashad and Ors., : [1974]1SCR322 observing as under:
The ratio of that decision was that no revision on a question of court fee lay where no question of jurisdiction was involved.
8. The Hon'ble Supreme Court further approved the judgment of the Kerala High Court in Vasu v. Chakki Mani, 0043/1962 : AIR1962Ker84 , wherein it was pointed out that no revision would lie against the decision on the question of adequacy of court fee at the instance of the defendant unless the question of court fee involves also the question of jurisdiction of the Court.
9. Thus, in view of the above judgment of the Supreme Court, the earlier judgments of various High Courts that revision may be maintainable by the defendant, cannot be held to have any persuasive force.
10. In G. Krishnamurthy and Ors. v. Sarangapani and Anr., : AIR1996Mad440 the Madras High Court held that 'primarily the issue regarding court fee is essentially a matter in between the Court and the suitor and the finding rendered by the Court cannot be said to have caused any prejudice to the defendant. ... The revision under Section 115 of the Code of Civil Procedure is also not maintainable.'
11. In Kamal Engg. Works v. Ashwani Kumar and Ors., AIR 1991 NOC 53 (Raj.), this Court held that 'mere decision given by a Court in the trial of a suit as to the amount of court fees payable does not amount to a 'case decided' nor is it necessarily an irregularity in procedure or illegality or refusal to exercise jurisdiction and therefore, no revision against such an order is competent. Moreover, it is an intelocutory order and as such not open to revision. The decisions on preliminary issue regarding the court fees does not result in deciding the whole suit and does not amount to a decision of the Court.'
12. Similar view has been reiterated by the Full Bench of the Punjab High Court in Arjan Motors Malout Partnership Firm v. Girdhara Singh and Ors., AIR 1978 P & H 25; by the Andhra Pradesh High Court in Subhadramma v. Palaksha Reddy and Ors., : AIR1975AP165 and by Sikkim High Court in Hari Prasad Sapkota and Ors. v. Krishna Prasad and Ors., AIR 1984 Sikkim 22. this Court had also taken the same view while disposing of S.B.C. Revision Petition No. 1041/1998, Dhanraj and Ors. v. Prem Raj, vide order dated 24.3.1999.
13. Validity of an order is to be tested on the touch-stone of doctrine of prejudice. Vide Janki Nath Sarangi v. State of Orissa, : (1970)ILLJ356SC ; K.L. Tripathi v. State Bank of India, : (1984)ILLJ2SC ; Sunil Kumar Banerjee v. State of West Bengal and Ors., AIR 1990 SC 1170; Maj. G.S. Sodhi v. Union of India, : 1991CriLJ1947 ; Managing Director, ECIL, Hyderabad and Ors. v. B. Kanunakar and Ors., : (1994)ILLJ162SC ; Krishan Lal v. State of J and K : (1995)IILLJ718SC ; State Bank of Patiala and Ors. v. S.K. Sharma, : (1996)IILLJ296SC ; S.K. Singh v. Central Bank of India and Ors., : (1997)ILLJ537SC ; State of U.P. v. Harendra Arora and Anr., : (2002)IIILLJ1124SC and Oriental Insurance Co. Ltd. v. S. Balakrishnan, AIR 2001 SCW 2450.
14. Thus, in view of the above, petitioner cannot be said to be aggrieved of the order impugned for the reason that jurisdiction of the Court is not involved at all. The case stand squarely covered by a large number of judgment of the Hon'ble Supreme Court and various judgments of the High Courts and particularly by judgment of this Court and there is no reason not to follow the law laid down therein.
15. The revision petition is held to be not maintainable and the same is dismissed accordingly. There shall be no order as to costs.