DUVVURI CHENGAL REDDI Vs. DEVAREDDI VENKATASUBBAREDDI

JUDGEMENT

(1.) This is a revision under section 115, Civil Procedure Code, seeking to revise the order of the lower Court passed under Order 47, rule 1, Civil Procedure . Code, reviewing its own order as to costsin O.S. No. 47 of 1962 on its file. In that suit an objection was taken that the suit was not properly valued and that if that was properly valued, the Munsif's Court which is the lower Court, will not have jurisdiction to entertain the suit. Ultimately it was found that the suit was undervalued and the plaint was returned for presentation to the proper Court. This was under Order 7, rule 10, Civil Procedure Code. While ordering return of the plaint the lower Court directed that costs incurred in the lower Court should abide the result of the suit in the Court where it would be represented. Subsequently the defendants filed I.A. No 280 of 1964 in the lower Court seeking to review that portion of the order in which it directed that the costs would abide the result of the suit in the proper Court. The lower Court relying upon certain observations of Mr. Justice Harwill in Aithappa v. Thaniappa, A.I.R. 1946 Mad. 345. to the effect that an inferior Court cannot direct a superior Court to provide for costs of the suit, allowed the review petition and directed the plaintiff to pay the costs of the defendants incurred in the lower Court. Hence this Civil Revision Petition is filed by the plaintiff. It is argued by the learned Counsel for the petitioner that there is no ground for review at all, because an error of law will not justify a review, but on this point I must hold against the petitioner's learned Counsel because an error apparent on the face of the record will also include an error of law.

(2.) Next it is argued that when the original order was passed directing that the costs should abide the result of the suit in the proper Court, the Munsif's Court did not intend the plaintiff to pay the costs of the defendants at all. It is pointed out that it is now for the first time in the review petition that the lower Court decided to award costs to the defendants. It is argued that in a review petition the lower Court may correct an error apparent on the face of the record only and may not pass a fresh decree for the first time. With this contention I agree. When the order returning the plaint for presentation to the proper Court was passed, the lower Court never intended the plaintiff to pay the costs of the defendants incurred in that Court. To my mind it appears that it was not the intention of the lower Court to award costs to the defendants. While reviewing it can at best delete a direction that the costs should abide the result of the suit in the superior Court, but the lower Court has gone turther and directed the plaintiff to pay the entire costs of the defendants incurred in that Court. This in my view the lower Court is not justified in doing.

(3.) The respondents' learned Counsel has taken a preliminary objection that revision does not lie because there is an alternative remedy by way of appeal against the decree itself as amended, but an order returning the plaint is not a decree at all. It is only an order. No doubt the Court while returning the plaint may provide for the payment of costs incurred upto date by the defendants, but that would not make the order returning the plaint a decree. But the respondents' learned Counsel is right in his contention that an appeal lies against the order of review directing the plaintiff to pay the costs of the defendants. But it is quite clear that at the same time an appeal does not lie to the High Court. So the objection raised by the learned Counsel for the respondents amounts to this, viz., that the High Court shall not interfere when there is an alternative remedy. That is a matter of discretion for the High Court. I think in the circumstances of this case I must exercise my power under section 115, Civil Procedure Code. This revision petition is therefore allowed and the order of the lower Court is set aside. The parties will bear their own costs here and in the lower Court. Petition allowed.