Ramkinkar Singh vs Kumar Jogendra Nath Singh and others

Wort, J.—These are two rules directed against the order of the Subordinate Judge in two actions brought by the same plaintiffs against the same defendants and relate to a matter of court-fees. In the case of Kumar Ramkinkar Singh v. Kumar Jogendra Nath Singh and others the learned Judge has decided that in the circumstances of the case the plaintiffs were liable to pay ad valorem court-fees. In the ease of Surendra Nath Basu v. Sitaram Singh and others the learned Judge has decided that the court-fees of Rs. 15 was sufficient. As I have said, against these two decisions these rules are directed. If the report is correct of the case of Ram Bhusan Das v. Bachu Rai, 1934 Pat 641 = 152 I C 1003, an unofficial report decided by the Chief Justice and Luby, J., (and there is no explanation which appears on the face of the report), then I am in the unfortunate position of having to choose between that decision and the decisions not only of the Privy Council but a long line of cases in this Court decided by Divisional Benches all of which are for one reason or another in agreement. I might at this stage refer to Sham Narain Singh v. Basudeo Prasad Singh 1930 Pat 277 = 122 I C 152 in which. I with my brother Kulwant Sahay expressed the view that the point decided by the Subordinate Judge in that case was one within his jurisdiction. That together with the fact that there was another remedy open to the petitioner placed the matter beyond the revisional powers of this Court.

The learned Chief Justice in the case to which I have first referred has stated that the decision reported in Sham Narain Singh v. Basudeo Prasad Singh 1930 Pat 277 = 122 I C 152 might be explained on the basis that it came within that class of case which was not open to revision. Put as a party to that judgment 1 must say that the matter there in dispute was whether the Judge had rightly decided what was the nature of the action brought by the plaintiff and therefore what was the proper court-fee; in other words what category did the case come within. I would add also that the case was decided not only on the ground that it was within the jurisdiction of the Subordinate Judge to decide the question, but that the plaintiff had another remedy which would immediately arise on his refusal to pay the extra court-fee and the Subordinate Judge rejecting the plaint. On the plain reading of S. 115, Civil P.C., therefore it was impossible for this Court to exercise its revisional powers. In the case decided by the Chief Justice and Luby, J., unless it is misreported (the only explanation can be that it is misreported), S. 115 would come into operation in that another remedy was open to the plaintiff and therefore the revisional powers of the Court could not be exercised. The learned Chief Justice in the judgment to which I have referred had said that if, it was a matter of "category" an application in revision lay.

If the matter to be determined by the Subordinate Judge was a matter of "category" it was for him to decide what was the nature of the action and what was the relief claimed in the suit. Having decided that, he would then decide under which provisions of the Court-fees Act the case came and decide the question of court-fee accordingly. That might be a question of fact; if it were, it certainly would be within the jurisdiction of the Judge. It might at the most be a question of law and in that event it would equally be within the jurisdiction of the Judge. The decision of either kind would only affect the matter of jurisdiction if the Judge had to determine whether the particular kind of action or the amount claimed brought it within his jurisdiction. As the Privy Council has pointed out, if a conclusion of fact or law was the basis of a decision as to jurisdiction, then the matter would be open to revision and not otherwise, The learned Chief Justice referred to Mani Lal v. Durga Prasad, 1924 Pat 673 = 80 I C 667 = 3 Pat 930, the reasons given therein being adopted by the Chief Justice. The point which the late Jwala Prasad, J., appeared to be dealing with was whether in any event an order which was interlocutory could be dealt with in revision by the High Court and, if I may say so with respect to that distinguished Judge, I do not disagree with the general preposition that if an interlocutory order was such as raised the question of jurisdiction and the order would do an irreparable damage to the complaining party, then an application such as this would lie. But with great respect to the Judges in Ram Bhusan Das v. Bachu Rai, 1934 Pat 641 = 152 I C 1003 that is very far from saying that although another remedy was open and although it was was a matter within the jurisdiction of the Judge deciding it, yet an application in revision lay. I am bound in my judgment in this case to rely upon the decisions of the Privy Council, because it is in my judgment impossible to distinguish the principles involved in this case. The first and the best-known case is that of Amir Hassan Khan v, Sheo Baksh Singh, (1885) 11 Cal 6 = 11 I A 237 (P.C.). In the trial Court it appears to have been argued that as the Code forbade a Court from deciding a matter which had already been disposed of by a previous litigation, the Court was acting with material irregularity by proceeding to try such a suit. Their Lordships of the Privy Council in the judgment of Sir B. Peacock said this:

The question then is, did the Judge of the lower Courts in this case, in the exercise of their jurisdiction, act illegally or with material irregularity ? It appeals that they had perfect jurisdiction to decide the question which was before them, and they did decide it, Whether they decided it rightly or wrongly they had jurisdiction to decide the case; and even if they decided wrongly they did not exercise their jurisdiction illegally or with material irregularity.

I then come to the well-known case of Balakrishna Udayar v. Vasudeva Aiyar, 1917 P C 71 = 40 I C 650 = 44 I A 261 = 40 Mad 793 (PC) in which their Lordships of the Judicial Committee made this observation at p. 267 of the report referring to S. 115, Civil P.C. :

It will be observed that the section applies to jurisdiction alone, the irregular exercise or non-exercise of it, or the illegal assumption of it. The section is not directed against conclusions of law or fact in which the question of jurisdiction is not involved. And if the appellant''s contention be correct, then if the civil Court should absolutely and whimsically decline to exercise its jurisdiction and refuse to make any orders as to the filling up of vacancies, no matter how many existed, there would not, in a case such as the present, be any remedy available under this section and no appeal would lie.

This Court in Banke Behari v. Ram Bahadur, 1918 Pat 131 = 44 I C 891 = 4 Pat L J 191 has decided against the jurisdiction of the High Court in matters of this kind. Courts, J., and Adami, J., decided in Lachmibai v. Nand Kumar Singh, 1921 Pat 180 = 56 I C 649 = 5 Pat L J 400 that this Court will not interfere in revision with an interlocutory order where there is another course open to the applicant and no irremediable harm can be suffered by the interlocutory order. This judgment of a Divisional Bench of this Court in my judgment, with great respect, applied to the facts of Ram Bhusan Das v. Bachu Rai, 1934 Pat 641 = 152 I C 1003. There is then the decision of this Court in Sham Narain Singh v. Basudeo Prasad Singh 1930 Pat 277 = 122 I C 1523 to which I have already made reference. It seems to me to be perfectly clear, that if I come to the conclusion that what the learned Judges in both these cases were deciding was the question of the construction of the plaint and the reliefs claimed therein and the construction of the Court-fees Act, then it is impossible to say that it was not a question of law; and if indeed it was a question of law, their Lordships of the Privy Council; have finally and for all time decided that an application for the exercise of the revisional powers of this Court would not lie. But not only am I bound in my judgment to follow their Lordships of the Judicial Committee for the reasons which they have stated, but I am also hound to follow the plain reading of the section itself which prohibits an application of this kind, as I have said more than once, where the aggrieved party has another remedy open to him. He most certainly had a remedy open here; he merely declines to pay court-fees; his application is dismissed under the condition and an appeal is open to him.

In those circumstances both the rules must be discharged with costs : hearing fee two gold mohurs in each case. In Civil Revision No. 630 two months'' time is allowed to pay the court-fee.