MUNNALAL KESHARWANI Vs. RAMWATI MISHRA

JUDGEMENT

(1.) This review petition is directed against the order dated 1.9.2010 in W.P.No.14287/09 passed by this Bench by which writ petition under Article 227 of the Constitution of India was allowed and the order passed by the trial Court i.e. VI Additional District Judge, Jabalpur in Civil Suit No.163-A/2004 dated 28.11.2007 was set aside.

(2.) Though this review petition is barred by limitation, but we have heard the learned counsel for petitioner on admission of the review petition. Learned counsel for petitioner raised following contentions:- (1) That the order passed by the trial Court dated 28.11.2007 was an appealable order as rejection of plaint amounts to a decree as defined in Section 2(2) of the Code of Civil Procedure. (2) Respondents ought to have filed a first appeal against the aforesaid order, but invoking the jurisdiction of this Court under Article 227 of the Constitution of India was misconceived. Stating aforesaid, it was submitted that the order dated 1.9.2010 passed by this Court may be reviewed.

(3.) Aforesaid provision specifically provides that any person suing for the specific performance of a contract for transfer of immovable property may ask for relief of possession in such suit. When such relief can be granted in a suit for specific performance of contract, a separate court-fee for the relief of possession was not required. The trial Court erred in directing the petitioners/plaintiffs to make payment of additional court-fee on the relief of possession which order cannot be sustained under the law. The impugned order is hereby set aside. The matter is remanded back to the trial Court to proceed in the matter in accordance with law. No order as to costs".