Heard learned counsel for both the parties and perused the record.
These two revisions have been preferred against the order dated 19.08.2010, passed by learned Additional Civil Judge, Senior Division, Court No.22, Lucknow, in Regular Suit No.112 of 1996. Hence, I proceed on to decide both these revisions together.
Admittedly, the suit was filed for declaration and injunction to the effect that plaintiff is the bhumidar of plot lying in Khasra No.314, Village Bastauli (now Indira Nagar), Lucknow. The plaintiff has valued the suit property for Rs.5,00,000/- and paid ad-voleram court fee of Rs.500/- and Rs.200/- respectively. During the pendency of the suit the plaintiff died and four persons were impleaded as legal representatives. The defendants filed their written statement and pleaded that the suit is highly undervalued and the court fee paid is insufficient. The relief as prayed for is that of possession and, as such ad-voleram court fee on the present market value of the property in suit be paid. Further on relief (b) also the ad-valoram court fee is payable on the market value of the property and the suit should not proceed unless proper court fee is paid. This plea has been taken in reply to para 20 of the plaint. Nothing has been pleaded by the defendants in additional pleas, regarding the payment of court fee.
Learned Trial Court framed issue no.8 to the effect that 'whether the suit is undervalued and court fee paid is insufficient?'. The defendants moved application paper no.130-C before the learned Trial Court for examining Sri Vivek Singh, valuer who has filed the report regarding valuation paper no.133-C. The learned Trial Court observed that the suit is of the year 1996 and the disposal shall be delayed if the valuer is summoned as witness. It was further observed by the learned Trial Court that the court can take cognizance of the report, as evidence. By holding this, the learned Trial Court rejected the application paper no.130-C. In the order dated 19.08.2010 the learned Trial Court has put heading "disposal application 130-C" and in the bottom line of the order beginning at page 2 he has mentioned that application 133-C deserves to be rejected. Accordingly, application 133-C is rejected.
Later on the learned Trial Court has put the heading "disposal of issue no.8" but in the first line issue no.3 is mentioned and lastly issue no.8 has been decided in affirmative. The disposal of issue no.8 is mentioned in the formal order itself. In either case, issue has been decided in affirmative. While holding valuation issue, learned Trial Court has observed that the suit is of the year 1996 and the valuation ad payment of court fee is meant for controlling the loss of revenue. It appears that the learned Trial Court is functioning as "Revenue Collector" and not as a court of law. He has further observed that in addition to it prima-facie "public interest" is vested in the suit. He has further observed that due to public interest the suit deserves to be disposed of earlier than early and in view of this fact suit should be valued by the Court itself. The learned Trial Court has disagreed with the report of the valuer and has assessed the value of the suit property himself. This observation is perverse.
Firstly, "public interest litigation" is a foreign subject for the Subordinate Courts. The notion of "public interest litigation" has been introduced by the various High Courts and Hon'ble Supreme Court, which are courts of record and it cannot be stretched to be in force of Subordinate Courts which are "courts of law". "Public interest litigation"is for the protection of the public interest which may be introduced by the Court itself, rather than to be raised by the aggrieved party or another third party. The concept of "public interest litigation" (PIL) is in consonance with the objects enshrined in Article 39-A of the Constitution of India to protect and deliver prompt social justice with the help of law. The Hon'ble Supreme Court in Sunil Batra v. Delhi Administration, 1980 (3) SCC 488 had accepted a letter written by an inmate of Tihar Jail, complaining of inhuman torture in the Jail. In Dr. Upendra Baxi v. State of U.P., AIR 1987 SC 191, the Court entertained a letter from two Professors at the University of Delhi, seeking enforcement of the constitutional right of inmates at protective home in Agra, who were living in inhuman degrading conditions. Before 1980's the only aggrieved party could approach the Court for justice. For the guidance of the learned Trial Court Article 39-(a) of the Constitution of India is reproduced as under:-
"[39A. Equal justice and free legal aid.
The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.]"
This court wants to make it clear that an action, at law, is not a game of chess. Notion of "public interest litigation" cannot be misused in Regular suits, which are filed where there is a right to sue under Section 9 of the Code of Civil Procedure.
Secondly, the Court has to decide a case on the strength of the evidence led by the parties. A Court of law cannot function as an "assessor". Assessment by a court of law is nothing short of introduction of a third case, which is not permissible under Indian Judicial System. On one hand, the learned Trial Court has rejected the application of the defendant to examine the valuer report which is on the records and, which report has been rejected by the Court on the ground that the valuer has valued the property in suit in the year 2010, though the suit was filed in the year 1996. On the other hand, learned Trial Court has enhanced the value of the property to the detriment of the plaintiff, without any substance or evidence, as if the learned Trial Court is a "Judge" of a country where there is no judicial system or law or where there is no constitutional mechanism. The perversity is apparent on the face of the record. There is no material on the record nor there is any law which empowers the Court to make its own assessment irrespective of what are the pleadings of the parties.
The word 'perverse' has been defined as deliberately departing from what is normal and reasonable. It obviously means unreasonableness and irrational.
Lord Diplock explained ``irrationality'' as follows:
"By `irrationality' I mean what can by now be succinctly referred to as Wednesbury unreasonableness'. It applies to a decision which is to outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it."
In other words, to characterize a decision of the administrator as ``irrational'' the Court has to hold, on material, that it is a decision ``so outrageous'' as to be in total defiance of logic or moral standards. Adoption of "proportionality" into administrative law was left for the future.
These principles have been noted in aforesaid terms in Union of India and Anr. v. G. Ganayutham, [1997] 7 SCC 463. In essence, the test is to see whether there is any infirmity in the decision making process and not in the decision itself. (See Indian Railway Construction Co. Ltd. v. Ajay Kumar, [2003] 4 SCC 579."
Another aspect of the case is that, at the most the learned Trial Court might have considered it to be equitable to but equity cannot be enforced by a Court of law, when it is opposed by the law on the point; equity cannot chew the law. The law on the point is crystal clear that "when there is a conflict between law and equity, it is the law which is to prevail. Equity can only supplement the law when there is a gap in it, but it cannot supplant the law. 'The court cannot legislate under the garb of interpretation.' Hence, there should be judicial restraint in this connection, and the temptation to do judicial legislation should be eschewed by the Courts. In fact, judicial legislation is an oxymoron. The literal rule of interpretation really means and there should be no interpretation.
By the impugned order, the learned Trial Court has chewed all the rules of procedure as enshrined in the Code of Civil Procedure and all the provisions relating to burden of proof as provided in Chapter VII of the Evidence Act, 1872. Only thing, which is appreciable, is that the learned Trial Court is really concerned about disposal of old cases but that concern should be subject to judicial norms, rules of procedure and application of law.
In view of the facts as mentioned above, impugned order has rightly made both the parties to the suit aggrieved and due to this reason both the parties have approached this Court to invoke its jurisdiction under Section 115 of the Code of Civil Procedure.
Since the learned Trial Court has directed the plaintiff to pay additional court fee, make amendment etc., the finality can well be attached to the order in question because the suit shall have to be dismissed if the plaintiff fails to succumb to the impugned order which shows deliberate and obstinate desire to behave in a way that is unreasonable or unacceptable and contrary to the accepted standards or practice of judicial institution.
Revisions are accordingly allowed. Impugned order is set aside and the learned Trial Court is directed to decide the application paper no.130-C/133-C and issue relating to valuation, strictly in accordance with law and settled norms of justice.
Order Date :- 03.12.2012/Ram.