JUDGMENT

RAMESHWAR SINGH MALIK, J. (ORAL) –

1. These two civil revision petitions, at the hands of defendant, filed under Article 227 of the Constitution of India, are directed against similar orders of even date i.e. 18.07.2017 (Annexure P-4) in both the civil revision petitions, whereby application under Order 7 Rule 11 read with Section 151 of the Code of Civil Procedure filed by the petitioner(s)-defendant was dismissed by the learned trial court.

2. Since both these revision petitions are between the same parties and arising out of similar set of facts, both are being decided together with the consent of learned counsel for the petitioner(s). However, for the facility of reference, facts are being culled out from CR No.5316 of 2017 (Steel Authority of India Versus M/s Raja Steel Works and others.

3. It is a matter of record that the plaintiffs-respondents filed the suit praying for a preliminary decree for rendition of accounts and for mandatory injunction, directing the defendants to settle all the claims of the plaintiffs based on the stipulation/directions given by the defendants in the delivery orders enclosed as C-2 to C-4 and on the basis/facts of the reports given by the Fact Finding Committee and Reconciliatory Committee, as detailed in the plaint and directed the defendants to refund/pay the said amount of losses to the plaintiffs with interest and with other ancillary as well as consequential benefits.

4. Defendants were put to notice. Defendants filed their written statement. Plaintiffs filed their replication. Defendants also filed an application under Order 7 Rule 11 CPC. In the application moved by the defendants vide Annexure P-2, they made a prayer which is available at page 42 of the paper-book to the effect that the suit filed by the plaintiffs be ordered to be dismissed with costs. Defendants sought rejection of the plaint in para 8 of the replication pointing out in earlier paragraphs of the application (Annexure P-2) that the suit was time barred and plaintiffs did not pay the ad valorem court fee. Plaintiffs filed the reply vide Annexure P-3. Averments taken by the defendants in their application were vehemently denied by the plaintiffs claiming the suit to be well within time.

5. Since the relevant averments taken in para 3 of the application, Annexure P-2 filed by the defendants and corresponding paragraph 3 of the reply-Annexure P-3 filed by the plaintiffs, are necessary to be referred here, these are reproduced hereunder, for ready reference:-

“That it is evident from a bare reading of the plaint that it does not disclose any proper cause of action, the prayer clause of the plaint makes it crystal clear that the plaintiff wants to collect the evidence through a Local Commissioner which cannot be allowed as per law. The reading of the prayer clause also makes it crystal clear that the plaintiff does not know that what amount the plaintiff wants to recover from the defendant.”

Para No.4 of the application is wrong and as such is denied. Suit has been correctly filed in the year 2000, which is within time and the suit is for rendition of accounts, which is to be finally settled in the proceedings of final decree. The plaintiffs have claimed relief of preliminary decree in this case. The suit is within time. The plain is to be seen and appreciated by the Hon'ble Court while deciding the application moved by the defendants. The application is not bonafide one. It is mentioned here that in replication point of limitation has been made clear by the plaintiffs. The actual amount, which will be found due from the defendants will be settled in proceedings of final decree and whatever amount will be found due from the defendants on that amount the court fee will be paid and that fact is mentioned in para No.48 of the plaint.”

6. After hearing the learned counsel for the parties, the learned trial court rightly dismissed the application of the defendants-petitioner(s), while passing the impugned order dated 18.07.2017 (Annexure P-4). Relevant observations made by the learned trial court in para 5 and 6 of the impugned order, read as under:-

“In the present application beforehand, the applicants/defendants have taken the plea under Order VII Rule 11 CPC on two accounts i.e., the limitation and the court fee. The instant suit has been filed by the plaintiff against the defendant for preliminary decree for renditions of account. No doubt, no court fee have been affixed but as per law laid down in M/s Commercial Aviation and Travel Company and others Versus Mrs.Vimla Pannalal AIR 1988 Supreme Court 1636, it has been held that in the suit for rendition of account the court has to accept the court fees tentatively. Meaning thereby, in the present case beforehand the tentative court fee is only to be affixed and not the proper court fee.

Regarding the point of limitation, it is hereby pertinent to mention that in the instant case beforehand when the parties are controverting with each other qua the payments made from time to time, then the limitation in the present case beforehand is mixed question of law and fact which can only be ascertained after leading the proper evidence by both the parties.”

7. Placing reliance on the following judgments of the Hon'ble Supreme Court and of the Jammu & Kashmir High Court in cases M/s Commercial Aviation & Travel Company and others Versus Mrs.Vimla Panna Lal, 1988 (3) SCC 423, K.C.Skaria Versus Govt. of State of Kerala and another, 2006(2) SCC 285 and Triloki Nath Dhar Versus Dharmarth Counsel, Srinagar and others, AIR 1975 (J&K) 76, learned counsel for the petitioner(s) contended that the learned trial court ought to have rejected the plaint as the suit is hopelessly time barred and also because the plaintiffs did not pay the ad valorem court fee on the amount sought to be recovered from the defendants-petitioner(s). He prays for setting aside the impugned orders passed by the learned trial court in both these cases, by allowing these revision petitions.

8. Heard learned counsel for the petitioner(s) in both these cases.

9. Having heard learned counsel for the petitioner(s) at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the contentions raised, this Court is of the considered opinion that keeping in view the totality of facts and circumstances of the case as well as the law laid down by the Hon'ble Supreme Court and by J&K High Court, impugned orders passed by the learned trial court deserve to be upheld and both these revision petitions are liable to be dismissed, for following more than one reasons.

10. As noticed from the averments taken by the petitioner(s) in their application (Annexure P-2) and the reply filed by the plaintiffs thereto vide Annexure P-3, it is crystal clear that suit was filed by the plaintiffs as far back as in the year 2000 and it is pending decision before the learned trial court for the last 17 long years. Neither the cause of this inordinate long delay in disposal of the suit is forthcoming from the documents available on record before this Court, nor the learned counsel for the petitioner(s) was aware about it.

11. He was also not aware about the exact status of the case before the learned trial court. Delay in disposal of the suit apart, the question of limitation is certainly a mixed question of law and facts as the plaintiffs are emphatically claiming that the suit was well within time. Undoubtedly, the suit has not been found barred by any provisions of law. So far as the issue of limitation is concerned, the learned trial court shall be deciding the same after appreciating the evidence to be led by both the parties. Having said that, this Court feels no hesitation to conclude that the learned trial court was well within its jurisdiction to pass the impugned orders and the same deserve to be upheld.

12. Coming to the issue of paying ad valorem court fee, it would suffice to say that neither any of the parties nor the learned trial court was in a position to pin-point any specified amount as on date for which the plaintiffs would be entitled to recover from the defendants. Once the amount is yet to be determined, plaintiffs were well justified in abovesaid part of their reply (Annexure P-3) to say that the actual amount which will be found due from the defendants will be settled at the time of passing of final decree. It was also stated that whatever amount will be found due from the defendants, on that amount the court fee will be paid and that fact has been mentioned in para 48 of the plaint. In para 48 of the plaint available at page 29 of the paper-book, plaintiffs have tentatively calculated different amounts on different counts saying that these were recurring in nature. Under these undisputed facts and circumstances of the case, it can be safely concluded that the learned trial court committed no error of law, while passing the impugned orders and the same deserve to be upheld, for this reason also.

13. The abovesaid view taken by this Court also finds support from numerous judgments of the Hon'ble Supreme Court as well as this Court. For the sake of brevity and also with a view to avoid any repetition, following observations made by this Court in its order dated 17.01.2017 passed in Civil Revision No.226 of 2017 (Bharpoor Singh and another Versus Lachhman Singh), referring to the entire case law, which are relevant and can be gainfully followed in the present case, read as under:-

14. In fact, object of the Court Fee Act, 1970, was to collect revenue for the benefit of the State. Thus, question involving court fee would be between the plaintiff and the State and it would hardly grant any right to the contesting parties to challenge the alleged inadequacy of court fee either paid or to be paid by the plaintiff.

15. Exactly similar issue fell for consideration before this Court in Jaspal Singh and another Vs. Gurbinder Singh, 2015 (3) PLR 97. Following the law laid down by Hon’ble the Supreme Court in Vimla’s case (supra) and also two Full Benches of this Court in Krishan Kumar Grover Vs. Parameshri Devi, (1966) 68 PLR 54 and Arjan Motors Vs. Girdhara Singh, 1978 AIR (Punjab) 25 as well as another judgment of the Hon’ble Supreme Court in Shamsher Singh VS. Rajinder Prashad and others, 1973 (2) SCC 524, this Court in para 4 and 5 of its judgment in Jaspal Singh’s case (supra), held as under:-

“The maintainability of the revision itself, firstly, comes under a cloud in view of the observations of the Apex Court in Rathnavarmaraja Vs. Vimla AIR 1961 SC 1299 wherein it was noticed that entertaining petitions preferred before the High Court in exercise of revisional jurisdiction and stalling progress in the suits for trial could not be appreciated. The Court Fee Act, 1870 was primarily a question between the plaintiff and the State and not to give leverage to the contesting party to obstruct trial of the proceedings. Relevant observations read as under:

“The Court-fees Act was enacted to collect revenue for the benefit of the State and not to arm a contesting party with a weapon of defence to obstruct the trial of an action. By recognising that the defendant was entitled to contest the valuation of the properties in dispute as if it were a matter in issue between him and the plaintiff and by entertaining petitions preferred by the defendant to the High Court in exercise of its revisional jurisdiction against the order adjudging court-fee payable on the plaint, all progress in the suit for the trial of the dispute on the merits has been effectively frustrated for nearly five years. We fail to appreciate what grievance the defendant can make by seeking to invoke the revisional jurisdiction of the High Court on the question whether the plaintiff has paid adequate court fee on his plaint. Whether proper court-fee is paid on a plaint is primarily a question between the plaintiff and the State. How by an order relating to the adequacy of the court-fee paid by the plaintiff, the defendant may feel aggrieved, it is difficult to appreciate. Again, the jurisdiction in revision exercised by the High Court under section 115 of the Code of Civil Procedure is strictly conditioned by cls. (a) to (c) thereof and may be invoked on the ground of refusal to exercise jurisdiction vested in the Subordinate Court or assumption of jurisdiction which the court does not possess or on the ground that the court has acted illegally or with material irregularity in the exercise of its jurisdiction. The defendant who may believe and even honestly that proper court-fee has not been paid by the plaintiff has still no right to move the superior court by appeal or in revision against the order adjudging payment of court-fee payable on the plaint.”

The said view was following by a Full Bench of this Court in Krishan Kumar Grover Vs. Parameshri Devi (1966) 68 PLR 54. The reference before the Full Bench was that whether the plaintiff could challenge the order whereby the Trial Court had directed the additional Court fees payable. It was, accordingly, held that a revision was maintainable at the instance of the plaintiff against an order directing payment of additional Court fees. The matter again came up before another Full Bench of this Court in Arjan Motors Vs. Girdhara Singh & others 1978 AIR (Punjab) 25 as to whether the defendants had a right to file a revision. Placing reliance upon the judgment of the Apex Court in Shamsher Singh Vs. Rajinder Prashad & others 1973 (2) SCC 524, the Division Bench held that the question of Court fees could not be raised by the defendants under Section 115 CPC. In Shamsher Singh's case (supra) also, it has been held that unless the question of Court fee involves the jurisdiction of this Court, revision would not be maintainable.

16. Again, the Hon’ble Supreme Court, in para 9 and 12 of its judgment in M/s Commercial Aviation and Travel Company and others Vs. Vimla Pannalal, (1988) 3 SCC 423, held as under:-

“In this connection, we may refer to the provision of order VII, Rule II(b) of the Code of Civil Procedure, which provides, inter alia, that the plaint shall be rejected where the relief claimed is undervalued and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so. It is manifestly clear from the provision of order VII, Rule II(b) that a Court has to come to a finding that the relief claimed has been undervalued, which necessarily means that the Court is able to decide and specify proper and correct valuation of the relief and, after determination of the correct value of the relief, requires the plaintiff to correct his valuation within a time to be fixed by the Court. If the plaintiff does not correct the valuation within the time allowed, the plaint is liable to be rejected. The question is whether in a suit for accounts simpliciter, the Court can come to a finding as to the proper and correct value of the relief until the final determination is made. In our opinion, ordinarily it is not possible for the Court at a preliminary stage to determining the value of the relief in a suit for accounts implicit. If the Court is itself unable to say what the correct valuation of the relief is, it cannot require the plaintiff to correct the valuation that has been made by him. Indeed, in a suit for accounts it is also difficult for the Court to come to a finding even as to the approximate correct valuation of the relief. In such a case, the Court has no other alternative than to accept plaintiff’s valuation tentatively.

xx                          xx                                 xx                                 xx

In the above decision, this Court took the view that the conversion of the plaintiff’s undivided share in the joint family property into his separate share cannot be easily valued in terms of rupees with any precision or definiteness. It is true that the Court did not consider whether the plaintiff had been given an absolute right or option to place any valuation whatever on his relief under the provision of section 7(iv) of the Court Fees Act, but the difficulty that would be felt by the Court in exercising its power under order VII, Rule 11(b) of the Code of Civil Procedure is that if it is unable to determine the correct value of the relief, it cannot direct the plaintiff to correct the valuation. Order VII, Rule 11 (b) contemplates correct valuation and not approximate correct valuation and such correct valuation of the relief has to be determined by the Court. If the Court cannot determine the correct valuation of the relief claimed, it cannot require the plaintiff to correct the valuation and, consequently, order VII, Rule 11(b) will not be applicable.

17. Similarly, this Court in Hemraj Vs. Harchet Singh, 1993 CivCC 48, Subhash Chander Goel Vs. Harvind Sagar, 2003 AIR (Punjab) 248 and State of Punjab Vs. Jagdip Singh Chowhan, 2005 (1) RCR (civil) 54, held that whenever plaintiff files suit for damages, exact value of relief to be granted cannot be ascertained in the very nature of things. While reiterating the view taken by this Court in Hemraj’s case (supra) and Subhash Chander’s case (supra), this Court in para 12 of Jagdeep Singh Chowhan’s case (supra), held as under:-

“The plaintiff-respondent's suit as framed is similar to the suits for damages considered by this Court in Hem Raj v. Harchet Singh and Ors., 1993 Civil Court Cases 48 (P&H) and Subhash Chander Goel v. Harvind Sagar, A.I.R. 2003 P&H 248. In the former case the plaintiff had sued for damages on account of injuries suffered by him and valued his suit for purposes of jurisdiction at Rs. 1.00 lac while for the purpose of court-fees suit was valued at Rs. 500.00. In the later case also the plaintiff had sued for damages and compensation and affixed Rs. 50,00 as court-fees. In both cases tentative valuation of the suits for the purposes of court-fees was accepted. The opinion of this Court as expressed in the above two cases is that where the Court is unable to say what the correct valuation of the relief is, it cannot require the plaintiff to correct the valuation and has been made by him. In such cases, Court had no other alternative than to accept the plaintiff's tentative valuation. In case of compensation, there is no objective standard available and indeed there never can be, which can help to determine the amount to which the plaintiff should value the relief claimed by him. It is the nature of things that valuation put by the plaintiff has to be tentative and cannot be disputed. Similarly, in the later case the view expressed in Hem Raj case (supra) was followed and petition's tentative valuation was accepted.”

18. The abovesaid view has also been reiterated by this Court in Manpreet Singh Vs. Gurmail Singh and others, 2016 (3) PLR 751, Dr. B.L.Kapoor Memorial Hospital VS. Balbir Aggarwal, 2015 SCC OnLine P&H 1790 and S. Ajit Singh Kohar VS. Shahsi Kant (passed in CR No. 5638 of 2014 on 25.8.2014).

19. Coming to the judgments relied upon by learned counsel for the petitioner(s), there is no dispute about the observations made therein. However, on a close perusal of the cited judgments, none has been found to be of any help to the petitioner(s), being distinguishable on facts. In the case in hand, the learned trial Court was well justified in following the law laid down by the Hon'ble Supreme Court in Vimla Pannalal's case(supra).

20. It is the settled principle of law that peculiar facts of each case are to be examined, considered and appreciated first, before applying any codified or judgemade law thereto. Sometimes, difference of even one circumstance or additional fact can make the world of difference, as held by the Hon'ble Supreme Court in Padmausundara Rao and another Vs. State of Tamil Nadu and others, 2002 (3) SCC 533, Union of India Vs. Amrit Lal Manchanda and others, 2004 (3) SCC 75, State of Orissa Vs. Md. Illiyas, 2006 (1) SCC 275 and State of Rajasthan VS. Ganeshi Lal, 2008 (2) SCC 533.

21. With a view to avoid repetition and also for the sake of brevity, observations made by the Hon’ble Supreme Court in para 11 and 12 of its later judgment in Ganeshi Lal’s case (supra), reiterating its view taken in Amrit Lal Manchanda’s case (supra) and Mohd. Illiyas’s case (supra), which can be gainfully followed in the present case, read as under:-

11. “12….Reliance on the decision without looking into the factual background of the case before it is clearly impermissible. A decision is a precedent on its own facts. Each case presents its own features. It is not everything said by a Judge while giving a judgment that constitutes a precedent. The only thing in a Judge’s decision binding a party is the principle upon which the case is decided and for this reason it is important to nalyse a decision and isolate from it the ratio decidendi. According to the well-settled theory of precedents, every decision contains three basic postulates; (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment. The enunciation of the reason or principle on which a question before a Court has been decided is alone binding as a precedent. (See: State of Orissa v. Sudhansu Sekhar Misra and Ors. (AIR 1968 SC 647) and Union of India and Ors. v. Dhanwanti Devi and Ors. (1996 (6) SCC 44). A case is a precedent and binding for what it explicitly decides and no more. The words used by Judges in their judgments are not to be read as if they are words in Act of Parliament. In Quinn v. Leathem (1901) AC 495 (H.L.), Earl of Halsbury LC observed that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which are found there are not intended to be exposition of the whole law but governed and qualified by the particular facts of the case in which such expressions are found and a case is only an authority for what it actually decides. Coming to the peculiar fact situation obtaining on record of the present case, it is unhesitatingly held that learned Permanent Lok Adalat discussed, considered and appreciated each and every relevant aspect of the matter, before passing the impugned award. The only endeavour made by the learned Permanent Lok Adalat was to do complete and substantial justice between the parties and this approach adopted by learned Permanent Lok Adalat has been found well justified on facts as well as in law. Ed. See State of Orissa Vs. Mohd. Illiyas, (2006) 1 SCC 275 at p.282, para 12.

12. 15….Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid’s theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. V. Horton (1951 AC 737 at p.761), Lord Mac Dermot observed: (AII ER p. 14 C-D)

"The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge."

16. In Home Office v. Dorset Yacht Co. (1970 (2) All ER 294) Lord Reid said (at All ER p.297g-h), "Lord Atkin’s speech.....is not to be treated as if it was a statute definition. It will require qualification in new circumstances." Megarry, J in Shepherd Homes Ltd. V. Sandham (No.2) (1971) 1 WLR 1062 observed: (AII ER p. 1274d-e) "One must not, of course, construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament." And, in Herrington v. British Railways Board (1972 (2) WLR 537) Lord Morris said: (AII ER p. 761c)

"There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case."

17. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.

15. The following words of Lord Denning in the matter of applying precedents have become locus classicus: (Abdul Kayoom v. CIT, AIR 1962 SC 680)

"Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive."

"Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it Ed. See Union of India VS. Amrit Lal Manchanda, (2004) 3 SCC 75, pp. 83-84, paras 15-18."

22. A bare combined reading of the abovesaid averments taken by both the parties and the orders passed by the learned trial court will leave no manner of doubt that since the plaintiffs-respondents have tentatively calculated different amounts on different counts in para 48 of the plaint, they were well justified to undertake to pay the court fee on the awarded amount at the time of passing final decree by the learned trial court. It is so said because even the learned trial court would not be in a position to ascertain the exact amount to be granted to the plaintiffs, as it would depend on the evidence to be produced by the parties. In this view of the matter, it is unhesitatingly held that the learned trial court has rightly dismissed the application of the defendants-petitioner(s) by passing the impugned orders and the same deserve to be upheld, for this reason as well.

23. Further, during the course of hearing, when confronted with as to what kind of prejudice, whatsoever, has been caused to the defendants by passing the impugned orders, which may warrant interference at the hands of this Court, while exercising its supervisory jurisdiction under Article 227 of the Constitution of India, learned counsel for the petitioner(s) had no answer and rightly so, it being a matter of record. Thus, following the law laid down by Hon’ble the Supreme Court in Vimla’s case (supra), Shamsher Singh’s case (supra) as well as by two Full Benches of this Court in Krishan Kumar Grover’s case and Arjan Motor’s case (supra), it is held that no revision petition before this Court would be maintainable at the hands of the efendants, unless the question of court fee involves the jurisdiction of court. It is so said, because the issue of court fee, including its alleged inadequacy, would be primarily between the plaintiffs and the State.

24. Under such circumstances, defendants cannot be permitted to stall the progress of the suit before the learned trial court, because it is not going to suffer any kind of prejudice due to alleged inadequacy of court fee paid by the plaintiffs. Although it may not be an absolute rule in every given situation, yet this Court would normally insist asking the defendants to show his locus standi and right to file and maintain a revision petition before this Court, against an order passed by learned trial court, dismissing his application under Order 7 Rule 11 CPC. It is so said because in the cases where the plaintiffs are claiming tentatively calculated amount, court fee can always be fixed after the court quantifies the amount, asking the plaintiffs to pay adequate court fee.

25. Reverting to the peculiar fact situation of the present case and respectfully following the law laid down by the Hon’ble Supreme Court as well as this Court in the cases referred to hereinabove, this Court feels no hesitation to conclude that learned trial court neither exceeded its jurisdiction, nor committed any error of law, while passing the impugned orders and the same deserve to be upheld.

26. No other argument was raised.

27. Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that the present revision petitions are misconceived, bereft of merit and without any substance. Thus, it must fail. No case for interference has been made out.

28. Resultantly, with the abovesaid observations made, both the abovesaid revision petitions stand dismissed, however, with no order as to costs.

Petitions dismissed.

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