Back
IN THE HIGH COURT OF MADHYA PRADESH (GWALIOR BENCH)
GURPAL SINGH AHLUWALIA, J.
Shailesh Jain - Appellant
Versus
Sachin Pal and Ors. - Respondents
M.P. No. 1660 of 2020
Decided On : 08-03-2021
Court Fees Act - Exemption from Court Fee - Section 35 of Court Fees Act - Summary of Acts and Sections: Section 5 of Limitation Act, Section 35 of Court Fees Act - The court discussed the provisions of Section 5 of the Limitation Act and Section 35 of the Court Fees Act. The court emphasized that the delay in filing an appeal cannot be condoned without giving an opportunity of hearing to the opposite party. The court also interpreted the notifications under Section 35 of the Court Fees Act and highlighted that the exemption from payment of Court fee is applicable to 'plaint' only and not to 'memo of appeal'. The court referred to the judgment in Chandulal Ghasiram Baradwar and Another vs. Central Bank of India and Another, reported in 1992 MPLJ 381 to support its interpretation. The court set aside the orders related to the grant of exemption from payment of Court fee and condonation of delay.
Fact of the Case:
The petitioner filed a suit for specific performance contract, which was decreed by the Trial Court. The respondents, minors, filed an appeal along with applications under Section 35 of Court Fees Act and Section 5 of Limitation Act. The Appellate Court allowed the applications, exempting the respondents from payment of Court fee and condoning the delay in filing the appeal. The petitioner challenged the order, alleging illegality in the proceedings.
Finding of the Court:
The Court found that the Appellate Court committed material illegality by allowing the application under Section 5 of Limitation Act without issuing any notice to the petitioner. The Court also held that the exemption from payment of Court fee is applicable to 'plaint' only and not to 'memo of appeal'. The Court set aside the orders related to the grant of exemption from payment of Court fee and condonation of delay.
Issues: The issues involved the legality of the Appellate Court's decision to grant exemption from Court fee and condone the delay in filing the appeal without issuing notice to the petitioner.
Ratio Decidendi: The delay in filing an appeal cannot be condoned without giving an opportunity of hearing to the opposite party. The exemption from payment of Court fee is applicable to 'plaint' only and not to 'memo of appeal', as interpreted by the Court.
Final Decision: The petition succeeded, and the orders related to the grant of exemption from payment of Court fee and condonation of delay were set aside. The Court directed the District Judge (Inspection) to investigate the circumstances and assigned the case to another Judge for hearing.
JUDGMENT :
Gurpal Singh Ahluwalia, J.
1. 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.
2. 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.
3. 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.
4. By the impugned order dated 15/11/2019, the Trial Court has allowed the application filed under Section 35 of Court Fees Act and 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.
5. 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.
6. 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, 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.
7. Heard the learned Counsel for the parties.
8. 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.
9. 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 of Court fee and accordingly, the application filed under Section 35 of Court Fees Act was allowed.
10. It is really surprising that the Court below itself has mentioned in the impugned order th
The delay in filing an appeal cannot be condoned without giving an opportunity of hearing to the opposite party. The exemption from payment of Court fee is applicable to 'plaint' only and not to 'mem....
Court fee - Court can grant extension of time for payment of the balance court fee beyond a period of 30 days.
Court has discretion under Section 149 to accept payment of deficit court fee at any stage, including after limitation, which cannot invalidate the suit if proper jurisdiction existed.
Conduct, behaviour and attitude relating to inaction/negligence by the appellant disentitle him to seek discretionary relief.
The right to appeal is substantive and determined by the law in effect at the original proceeding's initiation, not subject to retrospective fee increases.
The Court has the discretion to extend the time for deposit of the court fee, and once the court fee is paid within the extended time, it would be treated as having been paid at the first instance.
The provisions of Section 148 and 149 of the Code of Civil Procedure are intended to apply to cases of bona fide mistakes and not where a party consciously and intentionally avoided putting in defici....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
