HARI PRASAD SAPKOTA Vs. KRISHNA PRASAD

JUDGEMENT

(1.) This is a revision under S.115 of the Civil P. C. and Art.227 of the Constitution against the order dt. 26-12-83 of the learned District Judge, Sikkim, accepting the valuation of the reliefs, put by the plaintiffs-respondents in a suit brought by them against the petitioners, being defendants 1 to 3, and other defendants in the year 1979, for partition of the properties said to be joint Hindu family properties as detailed in Schedule 'A' to the plaint with a declaration of their right, title and interest therein to the extent of 3/4th share and also for rendition of accounts in respect of the income thereof, as also for permanent injunction restraining the defendants from transferring or in any way encumbering any of these properties. The respondents valued the suit for the purpose of partition at Rs. 10,000/- for injunction at Rs. 100/- and for accounting also at Rs. 100/- and paid the court-fee accordingly. Admittedly, the valuation is not based on the value of the properties involved; and the manner how the valuation was done, was not indicated. The defendants filed objections stating that the Court-fee should have been paid according to the value of the properties and the suit was under-valued. Vide order dt. 14th June, 1982, the learned District Judge observed that there was nothing on record to show how the plaintiffs had valued the reliefs claimed, and called upon them to show the basis of the valuation made. Thereafter, the plaintiffs made an application stating therein that in the law of the Court-fees as applicable to Sikkim, no basis or standard of valuing the reliefs as claimed in the suit, has been indicated and, therefore, the plaintiffs had the choice of putting their own valuation, and as such the Court-fees paid by them might be accepted as sufficient. Before any orders could be passed on this application, the Sikkim Court Fees (Exemption and Miscellaneous Provisions) Act, 1983 (hereinafter referred to as the Act of 1983) was enacted by the Sikkim Legislature, exempting under S.3 the payment of Court-fees, by those whose annual income from all sources did not exceed Rupees twentyfive thousand. Sub-sec.(3) of S.1 provides : "This Act shall come into force from such date as the State Government may, by notification in the Official Gazette appoint and different dates may be appointed for different provisions of this Act". In exercise of the powers conferred by sub-sec.(3) of S.1, the State Government appointed the 1st day of May, 1983 as the date on which the provisions of the Act except S.6 thereof would come into force, vide Notification No. 9/LD/1983/481 dt. 21st April, 1983 published in the Sikkim Government Gazette Extraordinary No. 60 Gangtok, Wednesday, April 27, 1983. Thus S.3 of the aforesaid Act came into force with effect from 1st May, 1983. Thereafter, on 25th August, 1983, the mother and natural guardian of the minor-plaintiffs filed an affidavit stating therein that the income of the plaintiffs collectively and severally was less than Rs. 25,000/- per year and so they were exempt from paying court-fees, as per the provisions of the aforesaid Act. In his order dt. 26th December, 1983, the learned District Judge observed that the contents of the affidavit had not been challenged by the defendants and, therefore, it could be taken for granted that the plaintiffs were not required to pay Court-fees, in view of the provisions of the aforesaid Act, and so it was immaterial for all practical purposes as to whether the reliefs claimed in the suit were properly valued. It was also observed that the learned counsel appearing on behalf of the defendants had not been able to dispute this position. So, the learned District Judge accepted the valuation put by the plaintiffs. Aggrieved, three of the defendants have come up in revision.

(2.) Shri Niladri Sarkar, Advocate appearing on behalf of the petitioners contends that the learned trial Court has erred in law in revising or reviewing his own order dt. 14th June, 1982 by his order dt. 26th December 1983, whereby the compliance of the order dt. 14th June, 1982, was not insisted upon. According to him, the learned trial Court ought to lave held that the plaintiffs were bound to file the valuation statement in compliance of the order dt. 14th June, 1982. Further, his contention is that the Act of 1983 has no retrospective operation and so does not apply to the present matter. On the other hand, Shri C.R. Bhattacharjee, learned counsel appearing on behalf of the respondents, has taken a preliminary objection as to the maintainability of the revision petition, stating that there is no jurisdictional error to entitle the petitioners to bring the petition, and has also defended the impugned order on merit by urging that the provisions of the Act of 1983 are fully applicable to the present case.

(3.) As regards the maintainability of the petition, S.115 of the Civil P. C. was amended by the Civil P. C. (Amendment) Act, 1976 (104 of 1976) (hereinafter referred to as the Amendment Act of 1976) curtailing the High Court's power to entertain revisions, by the addition of a proviso to sub-sec. (1) and insertion of sub-sec. (2). The proviso states that the High Court shall not vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except (a) the order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceeding or (b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made. The newly inserted sub-sec. (2) provides that the High Court shall not vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto. At first, learned counsel for the parties commenced arguing, as if the principles of the Code of Civil P. C., as it stood in the year 1975, were applicable in Sikkim, and not the amended Code, since they were under the impression, as is the general impression prevailing amongst the lawyers in Sikkim, that the amended Code has not yet become operative in Sikkim. But when it was pointed out by the Court that the Amendment Act of 1976 had the effect of extending the amended Code to Sikkim, they made a request for a decision on this point, as it is of importance to the lawyers and litigants not only in the High Court but also in the subordinate Courts; even if the amendment did not have much bearing on the present case. Apart from the request of the learned counsel, it is necessary while deciding a petition under S.115, to ascertain the dimensions of the revisional power and so to consider whether the restrictions imposed by the Amendment Act of 1976 are applicable in Sikkim, and, therefore, it is not only desirable but essential to decide this question.