High Court Of Kerala
THE HONOURABLE MR. JUSTICE S.S. SATHEESACHANDRAN
Saraswathy Amma - Appellant
Versus
Chandrasekharan Nair - Respondents
WP(C).No.21010 of 2009(o)
Decided On : 21 August 2009
Civil Procedure Code, 1908 - Order. XLVII and Rule. 7 - Redetermined the rights of parties - Whether an appeal is maintainable against all orders allowing review, under O.XLVII R.7 r/w O.XLIII R.1(w), C.P.C. ? Whether the Court has power to review its earlier decision determining the valuation of suit and sufficiency of court fee ? Held, Order XLVII R.1 contemplates application for review of a judgment, which no doubt, is applicable in the case of reviewing of orders as well - However, an appeal against any order allowing review as envisaged under O.XLVII R.7 C.P.C. is entertainable only if the order passed on the review application has redetermined the rights of the parties modifying the earlier order. An order reviewing an earlier order, subsequently reviewed, must involve the determination of some right or liability though it may not be necessary that there must be a decision on merit, Order in a review application revising a previous order of the court from which no appeal is provided by the Code cannot be challenged by way of an appeal invoking O.XLVII R.7 of C.P.C. What are the orders from which an appeal could be preferred is covered by S.104 of the Code of Civil Procedure - Where no appeal is provided as against the previous order passed by the court it is fallacious to contend that on review of that order for whatever reasons be, an appeal will lie under O.XLIII R.1(w) of C.P.C. So much so, the objections raised that P4 and P4(a) are amenable to appeal under O.XLIII R.1(w) C.P.C. have no merit, and deserve to be taken note only for its rejection - The orders passed by the learned Munsiff having been revoked, Court clear that all orders passed by the learned Munsiff pursuant to order also shall stand revoked and the suit shall continue on the file of his court as prior to the passing of order - The Writ Petition is allowed.
The writ petition is filed seeking the following reliefs:
"i) To issue writ of certiorari or any other of order or direction calling for the records leading to Ext.P4, P4(A) and P5 and quash the same.
ii) To set aside the order P5 dated 5.6.2009 and restore the suit O.S.No.128/2008 before the Hon'ble Munsiff Court, Ettumanoor.
iii) To declare that the above suit property is properly valued and proper court fee was paid and this suit is below the pecuniary limits of the Hon'ble Munsiff Court.
iv) To issue a direction to commence the evidence of O.S.No.128/2008 before the Hon'ble Munsiff Court, Ettumanoor and dispose of the suit expeditiously."
2. Petitioners are the plaintiffs in O.S.No.128 of 2008 on the file of the Munsiff Court, Ettumanoor. Suit is one for partition and the respondent, the defendant. Defendant in his written statement among other contentions had impeached the valuation of the properties covered by the suit and also the court fee paid under Section 37(2) of the Kerala Court Fees and Suits Valuation Act, hereinafter referred to as the Court Fees Act, as not reflecting the market value of the properties. An issue raised on the basis of the above contention as to whether the suit is maintainable, as issue No.5, on an interlocutory application moved by the defendant as I.A.No.1085 of 2008 was considered as a preliminary issue and disposed by order dated 17.1.2009 holding that the suit is maintainable. Suit was listed to commence trial on 3.6.2009. The defendant thereupon moved an application for reviewing the earlier order dated 17.1.2009 passed in I.A.No.1085 of 2008 with a petition to condone delay of 129 days, contending the question whether the court has pecuniary jurisdiction to entertain the suit has to be considered with reference to the challenge raised that the suit properties has not been properly valued with reference to its market value and if proper valuation is made, the Munsiff Court will not have pecuniary jurisdiction to entertain the suit. Learned Munsiff, after hearing both sides, after condoning the delay, allowed the review petition and passed orders afresh in I.A.No 1085 of 2008. By order dated 5.6.2009 accepting the contentions raised by the defendant that the valuation made is incorrect and on a proper valuation with reference to the market value, Munsiff Court has no jurisdiction to entertain the suit, the learned Munsiff ordered for returning the plaint to the plaintiffs directing them to file an application under Order VII Rule 10(a) CPC within one week. P4 is the copy of the order passed by the learned Munsiff allowing the petition to condone the delay in moving the review petition. Ext.P4(a) is the copy of the order allowing the review petition and Ext.P5, the copy of the revised order passed in I.A.No.1085 of 2008 dated 5.6.2009. Propriety and correctness of the above orders are challenged by the petitioners/ plaintiffs in this writ petition invoking the supervisory jurisdiction vested with this Court under Article 227 of the Constitution of India.
3. Notice being given respondent/defendant has entered appearance. I heard the learned counsel on both sides.
4. A preliminary objection was raised by the learned counsel for the respondent that the orders impugned are appealable and as such a writ petition invoking the visitoral jurisdiction under Article 227 of the constitution will not lie against the order under Ext.P4(a) reviewing the previous order passed in I.A.No.513 of 2009 by the learned Munsiff under Order XLVII CPC. As provided under Order XLIII Rule 1(w) of the Code P4 order condoning the delay in entertaining the review petition can also be challenged in the appeal against P4(a)order allowing the review petition, submits the counsel. Further submission of the learned counsel is that Ext.P5 order by which the plaint was ordered to be returned under Order VII Rule 10 CPC is also appealable under Order XLIII Rule 1(a) CPC. When an alternate efficacious remedy by way of
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