Madhya Pradesh High Court
K.M. Nizam And Anr. vs Union Bank Of India And Ors. on 14 February, 1991
Equivalent citations: 1991(0)MPLJ669, AIR 1992 MADHYA PRADESH 64, 1991 MPLJ 669, (1991) JAB LJ 381, (1993) 1 BANKLJ 316
ORDER K.L. Issrani, J.
1. This is an appeal under Order 43, Rule l(na) of the Code of Civil Procedure against an order dated 23-8-1990 passed by Shri R. C. Mishra, the Additional Judge to the Court of District Judge, Bhopal, in Civil Suit No. 61-B of 1984 (pending), rejecting the applications of the appellants for filing counter claims in forma pauperis.
2. The facts of this case are that the respondent No. 1 Union Bank of India filed a suit against the appellants for recovery of Rs. 1,70,392.62 P. The appellants, in their written statement, made a counter claim to the extent of Rs. 63,55,834.00 and prayed for a decree for the same after deducting whatever is found due to the plaintiff on account of advances made by it. In paragraph 26 of written statement, the defendant No. 2 i.e. the appellant No. 1 claimed exemption from payment of Court-fees in view of the Notification F.No.9-l-83/B-XXI, dated 1-4-1983. The appellant No. 1 pleaded that he is proprietor of the appellant No. 2 the firm concerned i.e. M/s Tower Engineering Works and is Hamal by caste. As per notification issued under Articles 15(4) and 16(4) of the Constitution, his community has been categorised as backward class community. He further pleaded that he is unemployed and, therefore, his annual income group, for which a certificate was obtained by him, fits him into the exempted category of backward classes vide Notification F.No. 9-1-83-B-XXI, dated 1-4-1983. He, therefore, submitted that he is not liable to pay Court-fees. Relying on the principles laid down in Ramji Sharma v. M. P. High Court, Jabalpur, AIR 1989 Madh Pra 247, he submitted that elaborate enquiry as contemplated under Order 33 is not required to be made in the case of a party falling within the exempted category under the Notification. Along with his written statement, he filed before the lower Court, caste certificate obtained from the competent authority in which it is stated that he is a Muslim and Hamal by caste and comes within the declaration of backward classes as declared by the Madhya Pradesh Government. He also filed a certificate obtained from the Naib Tahsildar, Bhopal, in which his annual income is said to be Rs. 4800/- on the basis of the affidavit given by him. He has yet filed another document, a copy of letter dated 24-2-1978 issued by the Branch Manager of the Union Bank of India addressed to the Regional Manager, Side Industrial Units, J.G.M.'s Office, Bombay of the said Bank, in which it is mentioned that the borrower is totally dependent upon this factory and quite a sizable amount of his own is invested. The plaintiff opposed the contention of the appellant No. 1 being an indigent person or entitled to exemption from payment of Court-fees within the purview of the aforesaid Notification.
3. The lower Court, relying on the principles laid down in Ramji Sharma v. M. P. High Court, Jabalpur (supra), proceeded with the matter without entering into an enquiry as required under Order 33, Rules 1 to 18 and Section 141 of the Code of Civil Procedure. The trial Court accordingly framed a preliminary issue as to whether the defendants 1 and 2 (the appellants) are entitled to claim exemption from payment of Court-fees and answered the same in negative. The issue framed is reproduced as under:
okn iz'u fu"d"kZ A D;k izfroknh Ø- 1 o 2 muds dkmUVj Dyse ds laca/k esa ns; U;k; 'kqYd ds Hkqxrku ds eqfDr izkIr djus ds ik= gS\ ugha
4. However, the present appeal is filed within the provisions of Order 43, Rule 1 (n.a.) of the Code of Civil Procedure, as if the order was passed under the provisions of Order 33, Rule 5 or 7 rejecting an application for permission to sue as an indigent person. To this, a preliminary objection has been raised by the counsel for the respondent No. 1 that the appeal under Order 43, Rule 1 (n.a.), C.P.C. is not maintainable. It is only revisable. The further submission of the learned counsel for the respondent No. 1 is that the appellants have failed to prove that they fall within the category of exempted class under the aforesaid notification and have failed to prove the annual income, as mentioned in the above notification. It is also submitted that ir. view of the fact that a revision and not an appeal lies, there is no error of jurisdiction committed by the Court. As such, no interference is called for and the appeal/revision is liable to be dismissed on this ground alone.
5. The parties are first heard on the maintainability of the appeal. The contention of the learned counsel for the appellants is that the appellant No. 1 filed a counter claim as an indigent person. There is no other provision except Order 33 for dealing with such applications. Even though the provisions of Order 33 are not applicable, the appeal is maintainable. For this, the learned counsel has relied on Girja Bai v. A. Thakur Das, AIR 1967 Mysore 217 and Sarmaniya v. M.P.R.P. Nigam, 1990 Jab LJ 386 at p. 396: (AIR 1990 Madh Pra 306 at pp. 313-14) (FB).
6. In the ruling cited in Girja Bai v. A. Thakur Das (supra), it has been held that there is no bar to a defendant claiming reliefs against co-defendants in a partition suit. In a suit for partition, a co-owner defendant, who in order to get her share must seek the cancellation of a release deed which she had executed in favour of the other co-owners defendants cannot only claim that relief by her written statement but also obtain it as a pauper under Order 33. This decision itself was in the revision petition. It does not deal with the point as to whether the order was appealable or revisable. The other ruling relied on by the learned counsel i.e. Sarmaniya v. M.P.R.P. Nigam (supra) (Full Bench) is on the point that the provisions of Order 33, C.P.C. are applicable in an application under Section 110 of the Motor Vehicles Act before the Motor Accident Claims Tribunal because it is a Civil Court and the provisions of Sections 24, 25 and Order 33, C.P.C. are applicable. There is no dispute to this effect. The appellants themselves, in their written statement, relied on the decision of this Court in Ramji Sharma v. M.P. High Court, Jabalpur, (AIR 1989 Madh Pra 247) (supra), in which a memorandum issued by the High Court directing the lower Courts to apply the provisions of Order 33, Rules 1 to 18 and Section 141, C.P.C. to the proceedings instituted by the persons claiming exemption from payment of Court-fees under the Notification by the State Government has been quashed. In the said case, this Court has held that -- "indeed, the scope of a proceeding under Order 33, C.P.C. is entirely different one and it has no relevance at all to the questions of total exemption of Court-fees contemplated under Section 35 of the Court-fees Act". The term "indigent person' is defined in the explanation appended to Rule 1 of Order 33 of the Code of Civil Procedure. The appellant No. 1 evidently is not a person of the same category as is contemplated under the Government Notification. The very purpose of exemption as noted in Laxmi Narayan v. Madan Mohan, AIR 1988 Madh Pra 142, is that of encouraging the weaker section of the society to ward off from exploitation.
7. This Court, in Laxmi Narayan v. Madan Mohan (supra) had held the notification of the State Government to be valid and has held that a person falling within the meaning of the expression of weaker section of society and also the persons falling within other categories given in the said notification will be entitled to exemption from payment of Court-fees provided their annual income does not exceed Rs. 6000/-. The aforesaid notification says that the following categories of persons whose annual income immediately preceding the date of presentation of the plaint from all sources does not exceed Rs.6000/-, namely :-- (i) member of Scheduled Tribes, (ii) member of Scheduled Castes, (iii) Minors, (iv) women, (v) artisan, (vi) unskilled labour, (vii) landless labourer and (viii) person belonging to the weaker section of the society.
8._ However, in the case of Ramji Sharma (Ramji Sharma v. M. P. High Court, Jabla-pur) (AIR 1989 Madh Pra 247) (supra) relied on by the appellants, the Court has further held as under (at p. 253 of AIR):
"12. We are of the opinion that it may be well within the competence of the trial Court, in the absence of Rule competently made by a competent authority regulating the procedure of such Court in respect of any claim made for exemption of Court-fees under Section 35 of tht Act, to follow such procedure in dealing and disposing of the claim as may be conducive to expeditious conclusion of the trial.."
The Court has further held (at p. 253 of AIR):
"13. It may be that when exemption claimed is allowed, it may adversely affect State Revenue and on that ground, it would be well within the jurisdiction of the trial Court to notice the Collector and hear him if he opposes the claim for exemption. This requirement would follow from the principles of natural justice as also indeed from Section 35 of the Act itself because it would be competent for the State to oppose claim made by any particular litigant in any particular case on the ground that he did not qualify for the exemption granted under the Notification. When exemption is granted, the State/Collector would cease to have any further interest in the suit or its subject-matter. On the other hand, as held in Mahphooj Hussain v. Kiran Bano, AIR 1987 Madh Pra 286, Court has to guard the Revenue's interest in indigence proceedings as per Rules 10 and 14 of Order 33, C.P.C., We have no doubt, therefore, that in so far those provisions are concerned, there is no scope for the application thereof in respect of a claim for exemption made under the Notification. In Laxmi Narayan v. Madan Mo-han, (AIR 1988 Madh Pra 142) (supra), trial Court's acceptance of plaintiffs evidence and determination on that basis fulfillment by him of the requirements of the Notification was held valid, but it has to be made clear that if Collector chooses to adduce, in any particular case, any contra-evidence, that has also to be assessed in rendering final decision on the claim made for exemption."
9. Consequently, since no specific rules of procedure for trying the applications for exemption from Court-fees have been framed under Section 35 of the Court-fees Act and the procedure laid down under Order 33, C.P.C. is held to be not applicable, the appeal under Order 43, Rule 1 (n.a.), C.P.C. is not maintainable. However, Hon'ble the Chief Justice in R. N. Rai v. Shesh Narayan, C.Rs. No. 91 of 1990, decided on 5-4-1990 : 1990 Jab LJ 377, has held that the claim for remission under the Government Notification under the determination and the question of category of annual income should be decided before the trial of the suit. So also this Court in Santosh Chandra v. Cyan Sunder Bai, 1970 Jab LJ 290 : (AIR 1971 Madh Pra 1) (FB), has held that the issues regarding untenability of the suit, limitation, and Court-fees are to be decided as preliminary issues under Order 14, Rr. 1 and 2 of the Code of Civil Procedure and, therefore, their decision cannot be postponed till decision of the case on merit.
10. The lower Court was, therefore, right in framing additional issue and trying the same as preliminary issue. This Court in Balaji Dhumnaji v. M. T. Muktabai, AIR 1938 Nagpur 122 (FB), has held that an order rejecting a memorandum of appeal because it is insufficiently stamped is not appealable. It does not fall within the definition of a decree given in Section 2(2) and has not been made appealable as an order under Order 43 of the Code of Civil Procedure. It further says that an order demanding additional Court-fees on a memorandum of appeal is always revisable.
11. The contention of the learned counsel for the appellants is that though the order was specifically under Order 33, it may be treated as an order under Section 151, C.P.C. and is appealable. This contention has also no force. No such authority was cited to show that the order will be deemed to have been passed under Section 151, C.P.C. and is appealable. In Krishan Kumar v. Parmeshri Devi, AIR 1967 Punjab 389 (FB), the Court has held that the order of subordinate Court directing the plaintiff to pay additional Court fee on the plaint within a certain time is revisable. The fact that an appeal lies from an ultimate decree or order passed in the suit is by itself not enough to shut out the revisional jurisdiction of the High Court. Though the counsel for the appellant has also further submitted that if the Court comes to the conclusion that revision and not an appeal lies, this case may be treated as a revision petition because the same set of Court-fee is payable in revision petition. On the basis of the decisions cited above, I am of the firm view that the impugned order is not appealable under Order 43, Rule 1 (n.a.), C.P.C. but is revisable under Section 115, C.P.C. It is, therefore, directed that it may be registered as revision petition.
12. Now coming to the limited scope of revision, though it seems that it should not be interfered with, the trial Court itself has neither framed an issue regarding the annual income of the appellants nor has, given a decision to that effect on the point. The trial Court has not issued any notice to the Collector. The trial Court has also not given time to the appellant for payment of Court-fees. Though in paragraph No. 5, the trial Court had in its order kept in its mind two points (i) whether the appellant No, 1 was calculated in the category of the persons exempted under the Notification; and (ii) whether immediately before 21-4-1986, when the counter claim was filed, the appellant's income was not more than Rs. 6000/- per year. But the Court has not decided as to what was the annual income of the appellant on the particular date. In their pleadings, the defendants have specifically submitted that the appellant No. 1 belongs to backward class for which he has also filed the caste certificate and has also filed the certificate to the effect that his annual income is only Rs.6000/- per year. The financial capacity of the appellant has also been admitted by the Bank in its letter dated 24-2-1978. The pleadings of the appellant have not been specifically denied by the respondent No. I. The appellant No. 1 has entered into the witness-box and has supported his contention. The lower Court has rejected his contention only on the ground that the certificate of income filed by him is of the year 1989 (based on his own affidavit) and whereas he has filed his counter claim on 21-4-1986. The lower Court has neither framed specific issue nor has determined the same. The matter pertains to revenue, notice to the Collector was must, as held in the case of Ramji Sharma, (AIR 1989 Madh Pra 247) (supra) itself. Therefore, it is in the interest of justice to remand the case to the lower Court for framing specific issue regarding income and sources of the applicant on the particular date and determine the same again after giving due opportunity to the parties and the Collector concerned.
13. With the above directions, the revision is allowed. There shall be no order as to costs.