This Misc. Appeal is directed against the order dt. 2.8.1999 in Civil Appeal No. 8-A/99 by Additional District Judge. Dindori, whereby the case was remanded for re-trial after the defendant No. 1/appellant pays the necessary court-fee and complies with the mandatory provision of Order 1 Rule 3-B of C.P.C.

The appellant/defendant No. 1 filed a counter claim in the suit filed by plaintiff/respondent No. 1 Ghansram. Though the suit of the plaintiff was dismissed. the counter claim of the appellant/defendant No. 1 was decreed by the trial Court. However. it appears that the appellant/defendant No. 1 had not paid Court fee and sought exemption by virtue of notification of the M.P. State under Section 35 of the Court Fees Act. That application was not decided in accordance with law. and the matter of exemption was not properly considered.

The learned Lower appellate Court by the impugned judgment directed the trial Court to hold due enquiry regarding the prayer of appellant/defendant No. 1 for exemption from payment of Court Fee. It also directed that provisions of Order 1 Rule 3-B of C.P.C. be complied with and the State of M.P. be made a party.

Learned counsel for appellant/defendant No. 1 submits that the appellant no longer claims exemption of court fee by virtue of notification under Section 35 of the Court Fees Act. He states that the appellant/defendant No. I has paid court fee on the counter claim at the appellant stage.

It is rather strange that the contention as above is being raised by the learned counsel for appellant. Obviously, the court fee has to be paid in the Court where the relief is being claimed and not in the higher forum at the appellate stage. The learned counsel for appellant has submitted that the appellant/defendant No.1 no longer claims exemption under the said notification and is willing to pay the necessary court fee in the trial Court. He will be free to do so.

However, in view of the fact that the appellant/defendant No. 1 did not pay necessary court fee regarding the counter claim in the trial Court and since due enquiry regarding the prayer for exemption was not made by the trial Court, the direction of learned lower appellate Court to the trial Court for holding such an enquiry is not unjustified. It is also clear that a decree in favour of appellant/defendant No. 1 could not have been granted without his paying the court fee, as was done by the trial Court, Therefore, the trial Court having committed palpable error in the matter, the order of remand with above directions appears to be wholly justified. No interference therein is called for.

However, as the learned counsel for appellant/defendant No. 1 has expressed that he no longer claims exemption from payment of court fee, therefore on the appellant/defendant No. 1 paying the court fee and complying with Order 1 Rule 3-B of C.P.C., his counter claim may be considered by the trial Court on merits without further delay. Needless to say that the evidence already laid by the parties in the trial Court shall form the basic decision afresh. However, the parties shall be at liberty to lead such further evidence as they may be advised.

This appeal is disposed of with the above direction.

Click Here to Read the rest of this document