SUDALI MUTHU PILLAI Vs. VSUDALI MUTHU PILLAI

JUDGEMENT

(1.) In this petition, I am asked here to revise the order of the Subordinate Judge of Tuticorin directing the petitioner, appellant before him to pay ad valorem fees on the amount at stake in his miscellaneous appeal instead of the fixed fee of eight anmas which he had actually paid.

(2.) The first question raised before me is whether this is a case in which this Court can interfere in revision with reference to the terms of Section 115, Civil Procedure. Code. In order to bring the matter with in the section I have first to find wether there is a case which has been decided by a Court. The respondent contends that there is no such case because the lower Court's order does not deckle anything at all being merely a conditional order which declares that the petitioner's appeal will be dismissed, if payment is not made within a month. The petitioner, it is urged, should have waited until a month had expired, allowed his appeal to be dismissed and then brought a second appeal against the dismissal in the ordinary course. Authority is against this contention. There are, firstly, cases resembling the present case generally in which this Court has interfered in revision with merely conditional orders containing a declaration that some result will follow in case a specified condition is not complied with. In Sitaramaya V/s. Ramappaya 39 Ind. Cas. 160 : L.W. 207, Arunachalam Chettiar V/s. Arunachalam Chettiar 69 Ind. Cas. 966 : 43 M.L.J. 218 : 16 L.W. 175 : (1222) M.W.N. 453 : (1922) A.I.R. (M.) 436, and Shanmuka Nadan V/s. Arunachalam Chettiar 69 Ind. Cas. 961 : 45 M. 194 : 14 L.W. 642 : (1921) M.W.N. 799 : 42 M.L.J. 97 : 30 M.L.T. 172 : (1922) A.I.R. (M.) 332, this Court interfered by way of revision with orders directing the correction of misjoinder of parties or causes of action, failure to comply with which would have been followed by the dismissal of the suit at some later date. And there is further a decision of this Court in Dodda Sannekappa V/s. Sakravva 36 Ind. Cas. 831, which is directly in point. It is urged that the cases relating to misjoinder afford no guidance here, since in them, if the proceedings had been allowed to go on on a mistaken basis, subtantial expense and trouble would have been wrongly imposed on the party, whereas, here the only result of a refusal to deal with the order before me in revision will be that the petitioner will have to submit to the dismissal of his suit in consequence of his refusal to pay and to file an appeal against that dismissal without being put to any expense in consequence of the continuation of the proceedings. But that distinction takes no account of a more important consideration common to those cases and to this the possibility that in appeal this Court may confirm the lower Court's older and yet may not exercise its discretion to give the petitioner an opportunity to comply with it. The petitioner is entitled to avoid the risk of any such refusal on the part of this Court to exercise its discretion in his favour. Convenience and authority justify a decision that there is before the a case which has been decided.

(3.) I turn next to another question, whether the requirement of Section 115 that the Subordinate Court has failed to exercise a jurisdiction vested in it or has acted in the exercise of its jurisdiction illegally, is fulfilled. Something has been said of the wording of Section 12 of the Court lees Act, under which the decision of the Court in which the plaint is filed, is final as between the parties to the suit. But that has been explained in Lakshmi Amma v. Janamajayam Nambiar 4 M.L.J. 183 (F.B.) as not debarring the Appellate Court from dealing with the question as to the category in which the suit is to be placed for the purpose of determining the Court--fee. Generally it is impossible to hold that the order directing the dismissal of an appeal in case the payment is not made, is not a refusal to exercise jurisdiction in that appeal and the fact that such refusal is conditional has already been dealt with in connection with the question whether there is a case which has been decided. Taking this view, I hold that it is open to me to proceed with the present case under Section 115, Civil Procedure Code.