Kokila Kumari Moharana and Four ors. Vs. Gopala Panda - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - 3. order 7, rule 11 of the civil procedure code provides for dismissal of a suit and empowers the court to reject the plaint in case a plaint does not disclose a cause of action, where the relief claimed is undervalued and inspite of time given by the court to correct the valuation within time, plaintiff fails to do so and where sufficient court-fee has not been paid and the deficiency is not made good inspite of time granted by the court or where the suit is barred by law. admittedly, the plaintiffs realizing the mistake immediately took steps after the death of the original plaintiff in the year 2005. 5. law is well settled that all the rules of procedure are the hand made of justice and the object of prescribing the procedure is to advance the cause of justice. 9100/ -as the trial court observed that looking into the long schedule of the property it is crystal clear that the suit was filed with undervaluation of the property, without giving any specific finding regarding the valuation of the suit and calling upon the plaintiffs to pay the deficit court fees, the said finding of the trial court is a jurisdictional error as it he has come to a finding of fact by asking itself a wrong question/approaching the question in an improper manner and it cannot be said to be one rendered with jurisdiction failure to render necessary finding to support its order would also be jurisdictional error and is liable to be corrected.ordersanju panda, j.1. challenge has been made in this writ petition to the order dated 17.10.2006 passed by the learned addl. civil judge (junior division), ranpur in title suit no. 14 of 2002 allowing the petition filed by the defendant under order 7, rule 11 of the civil procedure code for rejection of plaint and rejecting the petition filed by the plaintiffs under order 6 rule 17 of the civil procedure code for amendment of the plaint2. the brief facts of the case are as follows:the petitioners are the legal heirs of original plaintiff late banambar maharana who filed title suit no. 14 of 2002 in the court of learned addl. civil judge (junior division), ranpur for permanent injunction along with an application for interim injunction. the valuation of the suit was rs. 1000/-. the trial court after examining the plaint filed by the plaintiffs admitted the case and issued notice to the defendant. after his appearance, the order of status quo was passed on 10.7.2003 on contest which was confirmed by the learned addl.district judge, nayagarh in misc. appeal no. 12/1 of 2003. after the death of banambar, the present petitioners were substituted in his place vide order dated 8.8.2006. they filed an application under order 6, rule 17 of the civil procedure code for amendment of the plaint by deleting five out of six plots from the schedule of property and increasing the valuation to rs. 9,100/- in respect of the rest one plot only which is disputed. taking into consideration the written statement filed by the opposite party admitting that the dispute is in regard to one plot only, the trial court however on an application filed by the defendant under order 7, rule 11 of the civil procedure code rejected the amendment application filed by the plaintiffs and allowed the application filed by the defendant-opposite party under order 7, rule 11,of the civil procedure code without giving any chance to the plaintiffs or calling upon them to pay the proper court fees as determined by it.3. order 7, rule 11 of the civil procedure code provides for dismissal of a suit and empowers the court to reject the plaint in case a plaint does not disclose a cause of action, where the relief claimed is undervalued and inspite of time given by the court to correct the valuation within time, plaintiff fails to do so and where sufficient court-fee has not been paid and the deficiency is not made good inspite of time granted by the court or where the suit is barred by law. by virtue of amendment of 1999 and 2002, two further facts have been added that a plaint can be rejected if not filed in duplicate or where the provisions of order 7, rule 9 have not been complied with.4. in the present case, it was not disputed that the plaintiffs' suit was scrutinized by the court, the plaint was admitted, notice was issued to the defendant and he appeared and contested the interim application for injunction and the suit was continued from 2002 to 2006. at that juncture, the defendant filed an application under order 7, rule 11 of the civil procedure code. admittedly, the plaintiffs realizing the mistake immediately took steps after the death of the original plaintiff in the year 2005.5. law is well settled that all the rules of procedure are the hand made of justice and the object of prescribing the procedure is to advance the cause of justice. in an adversarial system no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. unjess compelled by express and specific language of the state, the provisions of the civil procedure code or any other procedural enactment ought not to be construed in a manner which would leave the court helpless to meet extraordinary situations in the ends of justice. no party ordinarily be denied the opportunity of participating in the process of justice dispensation. order 7, rule 11 of the civil procedure code mandates for rejection of the plaint in case it does not disclose a cause of action where the relief claimed is under-valued and in spite of time given by the court to correct the valuation, within the time the plaintiff fails to do so.6. from the facts stated in the fore-going paragraphs and the records available it appears that the trial court at no point of time called upon the plaintiffs to file deficit court fees on the determination of proper valuation of the suit. without giving an opportunity to the plaintiffs to pay the deficit court fees, the plaint should not have been rejected and the original plaintiff also died. therefore, the substituted legal heirs could not explain under what circumstances the plaintiff had valued the suit and did not comply with the provision of order 7, rule 9 of the civil procedure code. apart from that, if the impugned order is allowed to stand, it will cause prejudice to the plaintiffs and they will lose their rights over the disputed property.7. considering the peculiar situation of the case the trial court should have allowed the application filed by the plaintiffs under order 6, rule 17 of the civil procedure code for amendment of the plaint and enhanced the valuation of the suit from rs. 1000/- to rs. 9100/ -. as the trial court observed that looking into the long schedule of the property it is crystal clear that the suit was filed with undervaluation of the property, without giving any specific finding regarding the valuation of the suit and calling upon the plaintiffs to pay the deficit court fees, the said finding of the trial court is a jurisdictional error as it he has come to a finding of fact by asking itself a wrong question/approaching the question in an improper manner and it cannot be said to be one rendered with jurisdiction failure to render necessary finding to support its order would also be jurisdictional error and is liable to be corrected.8. accordingly, this court in exercise of the jurisdiction under article 227 of the constitution of india sets aside the order dated 17.10.2006 passed by the learned addl.civil judge (junior division), ranpur in title suit no. 14 of 2002 and directs him to allow the application filed by the plaintiffs under order 6, rule 17 of the civil procedure code subject to payment of cost of rs. 1000/- (rupees one thousand) to the defendant before the trial court within a period of six weeks from today.9. the writ petition is accordingly allowed. no costs.

Judgment:
ORDER

Sanju Panda, J.

1. Challenge has been made in this writ petition to the order dated 17.10.2006 passed by the learned Addl. Civil Judge (Junior Division), Ranpur in Title Suit No. 14 of 2002 allowing the petition filed by the defendant under Order 7, Rule 11 of the Civil Procedure Code for rejection of plaint and rejecting the petition filed by the plaintiffs under Order 6 Rule 17 of the Civil Procedure Code for amendment of the plaint

2. The brief facts of the case are as follows:

The petitioners are the legal heirs of original plaintiff late Banambar Maharana who filed Title Suit No. 14 of 2002 in the Court of learned Addl. Civil Judge (Junior Division), Ranpur for permanent injunction along with an application for interim injunction. The valuation of the suit was Rs. 1000/-. The trial Court after examining the plaint filed by the plaintiffs admitted the case and issued notice to the defendant. After his appearance, the order of status QUO was passed on 10.7.2003 on contest which was confirmed by the learned Addl.District Judge, Nayagarh in Misc. Appeal No. 12/1 of 2003. After the death of Banambar, the present petitioners were substituted in his place vide order dated 8.8.2006. They filed an application under Order 6, Rule 17 of the Civil Procedure Code for amendment of the plaint by deleting five out of six plots from the schedule of property and increasing the valuation to Rs. 9,100/- in respect of the rest one plot only which is disputed. Taking into consideration the written statement filed by the opposite party admitting that the dispute is in regard to one plot only, the trial Court however on an application filed by the defendant under Order 7, Rule 11 of the Civil Procedure Code rejected the amendment application filed by the plaintiffs and allowed the application filed by the defendant-opposite party under Order 7, Rule 11,of the Civil Procedure Code without giving any chance to the plaintiffs or calling upon them to pay the proper Court fees as determined by it.

3. Order 7, Rule 11 of the Civil Procedure Code provides for dismissal of a suit and empowers the Court to reject the plaint in case a plaint does not disclose a cause of action, where the relief claimed is undervalued and inspite of time given by the Court to correct the valuation within time, plaintiff fails to do so and where sufficient Court-fee has not been paid and the deficiency is not made good inspite of time granted by the Court or where the suit is barred by law. By virtue of amendment of 1999 and 2002, two further facts have been added that a plaint can be rejected if not filed in duplicate or where the provisions of Order 7, Rule 9 have not been complied with.

4. In the present case, it was not disputed that the plaintiffs' suit was scrutinized by the Court, the plaint was admitted, notice was issued to the defendant and he appeared and contested the interim application for injunction and the suit was continued from 2002 to 2006. At that juncture, the defendant filed an application under Order 7, Rule 11 of the Civil Procedure Code. Admittedly, the plaintiffs realizing the mistake immediately took steps after the death of the original plaintiff in the year 2005.

5. Law is well settled that all the rules of procedure are the hand made of justice and the object of prescribing the procedure is to advance the cause of justice. In an adversarial system no party should ordinarily be denied the opportunity of participating in the process of justice dispensation. Unjess compelled by express and specific language of the State, the provisions of the Civil Procedure Code or any other procedural enactment ought not to be construed in a manner which would leave the Court helpless to meet extraordinary situations in the ends of justice. No party ordinarily be denied the opportunity of participating in the process of justice dispensation. Order 7, Rule 11 of the Civil Procedure Code mandates for rejection of the plaint in case it does not disclose a cause of action where the relief claimed is under-valued and in spite of time given by the Court to correct the valuation, within the time the plaintiff fails to do so.

6. From the facts stated in the fore-going paragraphs and the records available it appears that the trial Court at no point of time called upon the plaintiffs to file deficit Court fees on the determination of proper valuation of the suit. Without giving an opportunity to the plaintiffs to pay the deficit Court fees, the plaint should not have been rejected and the original plaintiff also died. Therefore, the substituted legal heirs could not explain under what circumstances the plaintiff had valued the suit and did not comply with the provision of Order 7, Rule 9 of the Civil Procedure Code. Apart from that, if the impugned order is allowed to stand, it will cause prejudice to the plaintiffs and they will lose their rights over the disputed property.

7. Considering the peculiar situation of the case the trial Court should have allowed the application filed by the plaintiffs under Order 6, Rule 17 of the Civil Procedure Code for amendment of the plaint and enhanced the valuation of the suit from Rs. 1000/- to Rs. 9100/ -. As the trial Court observed that looking into the long schedule of the property it is crystal clear that the suit was filed with undervaluation of the property, without giving any specific finding regarding the valuation of the suit and calling upon the plaintiffs to pay the deficit Court fees, the said finding of the trial Court is a jurisdictional error as it he has come to a finding of fact by asking itself a wrong question/approaching the question in an improper manner and it cannot be said to be one rendered with jurisdiction Failure to render necessary finding to support its order would also be jurisdictional error and is liable to be corrected.

8. Accordingly, this Court in exercise of the jurisdiction under Article 227 of the Constitution of India sets aside the order dated 17.10.2006 passed by the learned Addl.Civil Judge (Junior Division), Ranpur in Title Suit No. 14 of 2002 and directs him to allow the application filed by the plaintiffs under Order 6, Rule 17 of the Civil Procedure Code subject to payment of cost of Rs. 1000/- (rupees one thousand) to the defendant before the trial Court within a period of six weeks from today.

9. The writ petition is accordingly allowed. No costs.