MD. GHOUSUDDIN S/O LATE JALALUDDIN Vs. STATE

JUDGEMENT

(1.) THE present revision petition is posted before the court on an office objection, that all the defendants in the suit pending before the tribunal are not parties.

(2.) THE learned counsel for the petitioners would submit that the issue pertains to the payment of court fees and since it is purely a matter between the petitioner/plaintiff and State. All the parties are not necessary parties and therefore he has chosen not to make them respondents. The fact remains that in the suit filed by the petitioners the Wakf Tribunal had suo motu held an enquiry and had obtained the report of a Commissioner as to the valuation of the suit property and had directed the petitioners to pay the court fees. On default, the suit came to be dismissed. That had been challenged by way of a writ petition before this court. This court on a consideration of the merits of the case had restored the suit to file and granted time to the petitioners to pay the court fees. The petitioners did not comply within the time prescribed. However, it is the case of petitioner that a review petition was filed before the Trbunal on the footing that the petitioner was not heard at the enquiry that was held earlier in so far as the valuation and court fees was concerned and the that review petition came to be dismissed. It is this, which is sought to be questioned in the present revision petition. On the face of it, when the petitioner had challenged the dismissal of the suit for non payment of court fees and this court in its writ jurisdiction having restored the suit to file and having granted time to the petitioners to pay the court fees, and if the petitioners have failed to do so could not then file a review petition when the order passed by the this court granting time to the petitioners to pay the deficit court fees was binding on the petitioner who was no longer enabled to question the quantum of court fees. When there is a positive finding by this court and the petitioner having accepted that position if the petitioner wanted to contend that the determination of the court fee payable was without holding a proper enquiry as the petitioner had never had opportunity of participating at the enquiry and that it was a suo motu enquiry held by the Tribunal, the petitioner ought to have raised such a contention in the writ petition in the first instance. That not having been done, the petitioner is precluded from questioning the determination of the court fee by way of a review petition in the face of the order passed in the writ proceedings. Therefore the present petition is not maintainable and it is accordingly rejected. This is without prejudice to any remedy or relief that the petitioners may seek in the writ petition on the say of the petitioners that the petitioners have sought for further extension of time to pay the court fee in terms of the order passed in the writ petition. It may be possible for the petitioner to seek additional relief in the very writ proceedings has without prejudice to any such claim, and with the above observations the petition stands rejected.