Madhya Pradesh High Court
Shailesh Jain @ Banti vs Sachin Pal (Minor) S/O Shri ... on 8 March, 2021
Equivalent citations: AIRONLINE 2021 MP 180
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
THE HIGH COURT OF MADHYA PRADESH 1
MP 1660 of 2020
Shailesh Jain alias Banti vs. Sachin Pal (Minor) and Ors.
Gwalior, Dated :08/03/2021
Shri Gaurav Mishra, Counsel for the petitioner.
Shri RS Sharma, Counsel for the respondent No.1.
Shri GK Agrawal, Govt. Advocate for the respondent No.4/ State.
This Miscellaneous Petition under Article 227 of the Constitution of India has been filed against the order dated 15/11/2019 passed by First Additional District Judge, Sironj, District Vidisha in MJC No 06 of 2019, by which the applications filed by respondents No.1 and 2 under Section 35 of Court Fees Act as well as under Section 5 of Limitation Act have been allowed.
The necessary facts for disposal of present petition in short are that the petitioner/plaintiff had filed a suit for specific performance contract. The said suit was decreed by judgment and decree dated 04/10/2016 passed by Civil Judge Class-I, Sironj, District Vidisha in Civil Suit No.1-A of 2014.
It appears that the respondents No.1 and 2 who are minors, filed an appeal through their mother along with an application under Section 35 of Court Fees Act as well as an application under Section 5 of Limitation Act.
By the impugned order dated 15/11/2019, the Trial Court has allowed the application filed under Section 35 of Court Fees Act and THE HIGH COURT OF MADHYA PRADESH 2 MP 1660 of 2020 Shailesh Jain alias Banti vs. Sachin Pal (Minor) and Ors. has granted exemption to respondents No.1 and 2 from payment of Court fee and by the same order, has also allowed the application filed under Section 5 of Limitation Act and condoned the delay in filing the appeal.
Challenging the order passed by the Court below, it is submitted by the Counsel for the petitioner that from the order dated 14/11/2019 passed by the Trial Court, it is clear that the case was adjourned to 22/11/2019 for arguments on the application filed under Section 35 of Court Fees Act. However, for the reasons best known to the Appellate Court, the case was preponed and the matter was taken up on 15/11/2019 i.e., on the next day and allowed the application filed under Section 35 of Court Fees Act by misreading the notification issued under Section 35 of Court Fees Act. Further, the Court below allowed the application filed under Section 5 of Limitation Act without even issuing any notice to the petitioner and thus, the order dated 15/11/2019 passed by Court below is per se illegal.
Per contra, it is submitted by the Counsel for the respondents no. 1 and 2 that a decree was obtained on the basis of forged agreement to sell. The Appellate Court has rightly granted exemption to the respondents no. 1 and 2 from payment of Court fee. It is further submitted that the agreement to sell was executed by their father and, THE HIGH COURT OF MADHYA PRADESH 3 MP 1660 of 2020 Shailesh Jain alias Banti vs. Sachin Pal (Minor) and Ors. as the respondents no.1 and 2 were not the signatory to the agreement to sell, therefore, even otherwise, they are not liable to pay the Court fee.
Heard the learned Counsel for the parties.
From the order-sheet dated 14/11/2019, it appears that the case was adjourned to 22/11/2019 for arguments on the application filed under Section 35 of Court Fees Act. However, for the reasons best known to the respondents No. 1 and 2, they preferred an application for urgent hearing and the said application was allowed on 15/11/2019 and the matter was preponed from 22/11/2019 to 15/11/2019. It is not out of place to mention here that on earlier occasions, the respondents no.1 and 2 were constantly seeking adjournment for arguments on application filed under Section 35 of Court Fees Act, therefore, under this circumstance, there was no good reason for the Appellate Court to allow the application for urgent hearing and hear the pending applications. Be that as it may.
It is also mentioned in the impugned order that although notices to the respondents have not been issued but since the appeal is listed for hearing on the question of payment of Court fee, therefore, the Counsel for the respondents No. 1 and 2 was heard and after relying upon the notification dated 1-4-1983, the Appellate Court held that the respondents no.1 and 2 are entitled for exemption from payment THE HIGH COURT OF MADHYA PRADESH 4 MP 1660 of 2020 Shailesh Jain alias Banti vs. Sachin Pal (Minor) and Ors. of Court fee and accordingly, the application filed under Section 35 of Court Fees Act was allowed.
It is really surprising that the Court below itself has mentioned in the impugned order that the respondents have not been noticed but even then took up the application filed under Section 41 Rule 3 of CPC as well as application under Section 5 of Limitation Act. Without issuing any notice to the petitioner, the Court below allowed the application filed under Section 5 of Limitation Act and condoned the delay in filing the appeal and admitted the appeal for hearing.
Accordingly, the orders passed by the Appellate Court on application under Section 5 of Limitation Act and under Section 35 of MP Court Fees Act, are under challenge.
Section 5 of Limitation Act:-
If an appeal is not filed within the statutory period of limitation, then a valuable right is created in favour of the opposite party and the delay in filing the appeal cannot be condoned until and unless an opportunity of hearing is given to the opposite party.
In the present case, the Appellate Court has mentioned in its own order that notices of the case have not been issued to the petitioner but for the reasons best known to the Presiding Judge, he on his own took up the application filed under Section 5 of Limitation Act and condoned the delay. If the order dated 14/11/2019 is THE HIGH COURT OF MADHYA PRADESH 5 MP 1660 of 2020 Shailesh Jain alias Banti vs. Sachin Pal (Minor) and Ors. considered, then it is clear that on the said date, the case was fixed for arguments on the application under Section 35 of Court Fees Act only and the case was adjourned for 22/11/2019 at the request of the counsel for the respondents no.1 and 2.
Surprisingly, thereafter, on the very next date, the respondents no. 1 and 2 filed an application for urgent hearing and the Presiding Judge not only allowed the application for urgent hearing but took up all the pending interlocutory applications knowing-fully well that the notices have not been issued to the petitioner so far.
Under these circumstances, this Court is of the considered opinion that First Additional District Judge, Sironj, District Vidisha committed a material illegality by taking up the application filed under Section 5 of Limitation Act and also decided the same without issuing any notice to the petitioner specifically when the case was never listed for consideration of application under Section 5 of Limitation Act.
Accordingly, the order dated 15/11/2019 so far as it relates to condonation of delay is concerned, the same is set aside.
Section 35 of Courts Fee Act:-
The Appellate Court, while allowing the application of the Respondents no. 1 and 2 for exemption from payment of Court Fees, has relied upon the notification dated 1-4-1983, but during the Course THE HIGH COURT OF MADHYA PRADESH 6 MP 1660 of 2020 Shailesh Jain alias Banti vs. Sachin Pal (Minor) and Ors. of Arguments, the Counsel for the respondents no.1 and 2 relied upon the notification No.9-1-83-21-B(2), dated 1/1/1998 which reads as under:-
vf/klwpuk Qk-dz- 9&1&83&bDdhl&c ¼nks½ fnukad 1 tuojh] 1998&U;k;ky; 'kqYd vf/kfu;e] 1870 ¼1870 dk la[;kad 7½ dh /kkjk 35 }kjk iznRr 'kfDr;ksa dks iz;ksx esa ykrs gq, jkT; ljdkj ,rn~}kjk lEiw.kZ e/;izns'k jkT; esa vR;kpkj dh f'kdkj efgykvksa }kjk okn&i= ij ns; U;k;ky; 'kqYd ls tks fd mDr vf/kfu;e dh vuqlwph 1 ds vuqPNsn 1&d rFkk 2 vkSj vuqlwph 2 ds vuqPNsn 5] 17 rFkk 21 esa fofufnZ"V gS] NwV iznku djrh gSA ¼e/;izns'k jkti= ¼vlk/kkj.k½ fnuad 03-01-1998 i`"B 7 ij izdkf'krA½ Although, the Appellate Court has passed the impugned order by considering the notification dated 1-4-1983, but since, the Counsel for the respondents no.1 and 2 has relied upon the notification dated 1-1-1998, therefore, his argument is also considered.
In the notification date 1-1-1998, the word '' plaint'' has been mentioned. It is submitted by counsel for the respondents no. 1 and 2 that since appeal is the continuation of the suit, therefore, the word '' plaint'' has to be interpreted as "memo of appeal" also. However, the Counsel for the respondents no. 1 and 2 could not point out any judgment passed by this Court or by the Supreme Court in this regard. Further the appeal has not been filed by a woman, but it has been filed by two minor children, through their guardian, i.e., mother. Therefore, it cannot be said that the appeal was filed by a woman. Therefore, the respondents no. 1 and 2 were not entitled to claim THE HIGH COURT OF MADHYA PRADESH 7 MP 1660 of 2020 Shailesh Jain alias Banti vs. Sachin Pal (Minor) and Ors. benefit of notification dated 1-1-1998. Further, there is nothing on record to show that the mother of the respondents no.1 and 2 was the victim of any atrocity.
The Division Bench of this Court in the case of Chandulal Ghasiram Baradwar and Another vs. Central Bank of India and Another, reported in 1992 MPLJ 381 has held as under:-
''2. By a detailed order passed on 21-11-1990, it has been held that the exemption provided for in that notification is available in court-fee only in plaint and not in appeal. The view has been that a plain reading of that notification indicates that it applies only to plaint and not to appeal. This was because of non-inclusion of 'appeal' within its fold. The non-inclusion of appeal is deliberate and it is not the function of the Court to substitute words in any enactment. It is indeed contrary to all rules of construction to read words into an Act, unless it is absolutely necessary to do so. In B.I.G. Insurance Co. v. Itbar Singh, AIR 1959 SC 1331, the Supreme Court, while dealing with Section 96(2) of the Motor Vehicles Act, 1939, held that the section was exhaustive of defences open to an insurer and refused to add word 'also' after the words 'on any of the following grounds'. The observations are : "This, the rules of interpretation, do not permit us to do unless the section as it stands is meaningless or of doubtful meaning". See also Ranula Bose v. Manmatha Nath, AIR 1945 PC. 108; Grunwick Processing Laboratories Ltd. v. Advisory Conciliation and Arbitration Service, (1978) 1 All. E.R. 338 (HL) and Assessing Authority-cum-Excise and Taxation Officer v. East India Cotton Mfg. Co. Ltd., AIR 1981 SC 1610. We may also usefully quote the words of Ventakarama Aiyer, J. in Jumma Masjid v.
Kodimaniandra, AIR 1962 SC 847, when, while interpreting Section 43 of the T. P. Act, 1882, it was observed : -
"We are no entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself."
THE HIGH COURT OF MADHYA PRADESH 8 MP 1660 of 2020 Shailesh Jain alias Banti vs. Sachin Pal (Minor) and Ors. We may now take it as a well settled rule of interpretation that a matter which should have been, but has not been provided for in a statute cannot be supplied by Courts, as to do so will be legislation and not construction. Further, it is not the duty of the Court to stretch the word used by the Legislature to fill in gaps or omissions in the provisions of an Act. (See :Hira Devi v. District Board, Shahjahanpur, AIR 1952 SC 362).
3. Considerations based upon the above settled law prevailed earlier, when this Court passed the order dated 21-11-1990 in this case, rejecting the appellant's plea of exemption from payment of court-fee on the memorandum of appeal in view of the above notification. We are not inclined to take a different view now. We, however, notice that the learned single Judge of this Court (Dr. T. N. Singh, J.) in Jagdambe Niwad Co. v. Punjab National Bank, Gwalior, F.A. No.52 of 1985 (Gwalior), decided on 26-3- 1991 (reported in 1991 MPJR 274), has held that the notification is also applicable to memorandum of appeals; that the word 'plaint' used in the notification must be given a liberal interpretation and the meaning should be ascertained in the context of the other words which it keeps company in the specified Articles. The learned single Judge appears to have been very much impressed by the feeling that the object of a benevolent provision must not be nullified by looking at it with non-benevolent eyes and minds. With all due respect to the learned Judge, we feel that the canons of interpretation, to which we have made a reference earlier, have been completely overlooked. We do not agree that the word 'plaint' has not been used to denote any choice made purposely and deliberately to deny exemption in respect of a memorandum of appeal. On the other hand, we are of firm opinion that the omission is deliberate and the benefit of exemption is intended to be granted only to initiate litigation by filing plaint. Thereafter, once a decision is rendered, the party who wants to agitate the matter further has not been given the same facility of prosecuting that litigation in appeal without payment of court-fee. This, to us, appears to be reason behind the deliberate omission of the word 'appeal' in the said notification. It appears that the view of the Division Bench of this Court was not brought to the notice of the learned single Judge. On the other THE HIGH COURT OF MADHYA PRADESH 9 MP 1660 of 2020 Shailesh Jain alias Banti vs. Sachin Pal (Minor) and Ors. hand, we find in the report, immediately next to the aforesaid case at page 283 Ramswarup Vishist v. State of M. P., 1991 MPJR 283, that another learned Judge has taken a view which accords with the view expressed by this Court in this case in the order dated 21-11-1990. We affirm the view so taken in Ramswarup Vishist v. State of M. P. (supra).
4. For the aforesaid reasons, we reiterate our opinion expressed by order dated 21-11-1990 that the notification is not applicable to memorandum of appeals. A memorandum of appeal is not exempted from payment of court-fee under the said notification. We overrule the decision of the learned single Judge (Dr. T. N. Singh, J.) in Jagdambe Niwad Co. v. Punjab National Bank, Gwalior, 1991 MPJR 274.'' Although the above-mentioned judgment was passed in relation to notification dated 1-4-1983, issued under Section 35 of Court Fees Act but the provisions of the notification dated 1/1/1998 are in pari materia with the notification dated 1st April, 1983 and in this notification also, the word '' plaint'' has been mentioned and the words ''memo of appeal'' have been deliberately omitted.
Under these circumstances, this Court is of the considered opinion that the notification dated 1/1/1998 which gives exemption to the eligible woman from payment of Court fee, is applicable to ''plaint'' only and not to ''memo of appeal''.
However, it is once again pointed out that the Appellate Court has allowed the application for exemption from payment of Court fee on the basis of notification dated 1st April,1983 . The Appellate Court did not care to consider the judgment passed by the Division Bench of THE HIGH COURT OF MADHYA PRADESH 10 MP 1660 of 2020 Shailesh Jain alias Banti vs. Sachin Pal (Minor) and Ors. this Court in the case of Chandulal Ghasiram Baradwar (supra).
Accordingly, this Court is of the considered opinion that the impugned order so far as it relates to grant of exemption from payment of Court fee in the light of notification dated 1 st April, 1983 is bad in law and cannot be approved. Hence, it is set aside.
It is further contended by the Counsel for the respondents no. 1 and 2 that since the respondents no.1 and 2 were not the signatory to the agreement to sell but it was signed by their father/respondent no.3, therefore, the respondents no. 1 and 2 are not liable to pay Court fee.
Considered the submissions made by the Counsel for the respondents No. 1 and 2.
The submission made by the Counsel for the respondents No. 1 and 2 was never argued before the Appellate Court. On the contrary, the case before the Appellate Court was that the respondents No. 1 and 2 are exempted from payment of Court fee in view of notification dated 1st April, 1983.
Furthermore, it is the case of respondents no.1 and 2 that the agreement to sell was never executed by them but it was executed by their father Laxmi Narayan. Thus, it is clear that the respondents no. 1 and 2 are trying to avoid the agreement to sell executed by their father. Furthermore, a very interesting situation is that on 14/11/2019, THE HIGH COURT OF MADHYA PRADESH 11 MP 1660 of 2020 Shailesh Jain alias Banti vs. Sachin Pal (Minor) and Ors. the Trial Court had adjourned the matter for 22/11/2019 for arguments on the application filed under Section 35 of Court Fees Act, however, on 15/11/2019, the matter was preponed on the application for urgent hearing filed by respondents no.1 and 2 and it was taken up on 15/11/2019 only. Laxmi Narayan, the father of respondents no. 1 and 2 has been impleaded as respondent in the appeal.
Surprisingly, Laxmi Narayan was present before the Appellate Court on 15/11/2019 and he has signed the order sheet of the said date also, but it is not clear that how he came to know that the respondents no.1 and 2 are going to file an application for urgent hearing and the matter will be taken up by the Appellate Court on the very same day, specifically when the notices of the appeal have not been issued to the respondents.
Be that whatever it may.
The crux of the matter is that the respondents no.1 and 2 are not entitled for the benefit of notification dated 01/04/1983 as the same is not applicable to "memo of appeal". Accordingly, the order dated 15-11-2019, so far as it relates to grant of exemption from payment of Court Fee is hereby Set Aside.
The respondents no.1 and 2 are hereby directed to pay the Court Fee within a period of 15 days from today, failing which the consequences as mentioned in Order 7 Rule 11 CPC would THE HIGH COURT OF MADHYA PRADESH 12 MP 1660 of 2020 Shailesh Jain alias Banti vs. Sachin Pal (Minor) and Ors. automatically follow.
In case, the Court Fee is paid by the respondents no.1 and 2 within the period of 15 days from today, then the Appellate Court is directed to hear the application filed under Section 5 of Limitation Act afresh, after giving an opportunity of hearing to the petitioner and all other respondents in the appeal.
The manner in which the matter has been handled by Shri Nisar Ahmed, First Additional District Judge, Sironj, District Vidisha, this Court is of the considered opinion, that the District Judge (Inspection) Gwalior needs to take up this matter.
Accordingly, the District Judge (Inspection) Gwalior, is directed to find out the reasons for preponing the date, specifically when on several occasions, time was sought by the Counsel for the respondents no. 1 and 2 to argue the matter on the question of exemption from payment of Court Fee. The District Judge (Inspection), Gwalior, is also directed to look into the matter, that when the Presiding Judge, himself had mentioned that the notices of the appeal have not been issued to the respondents, then under what circumstances, the application for condonation of delay was taken up and was allowed on the same day, specifically when, the appeal was never listed for consideration of the said application.
Let the entire exercise be completed within a period of one THE HIGH COURT OF MADHYA PRADESH 13 MP 1660 of 2020 Shailesh Jain alias Banti vs. Sachin Pal (Minor) and Ors. month from today and thereafter the District Judge (Inspection) shall proceed further in accordance with law.
In the light of the above mentioned circumstances, this Court is of the considered opinion that the Appeal should be heard by some other Judge and not by Shri Nisar Ahmed. Accordingly, the District Judge, Vidisha is directed to assign this case to some other Judge.
Consequently, the order dated 15/11/2019 so far as it relates to grant of exemption from payment of Court fee as well as condonation of delay, is set aside.
The petition succeeds and is hereby Allowed. No order as to costs.
(G.S. Ahluwalia) Judge MKB MAHENDRA KUMAR BARIK 2021.03.10 16:30:39 +05'30'