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Balashankar Traders through Partner Rahul & Others v/s Jhanwar Ice & Cold Storage through Partner Anil Kumar Jhanwar & Others

    Misc Appeal No. 2376 of 2009
    Decided On, 28 August 2012
    At, High Court of Madhya Pradesh
    By, THE HONOURABLE MR. JUSTICE N.K. MODY
    For the Appellants: M.K. Jain, Advocate. For the Respondents: S.G. Gokhle, Advocate.


Judgment Text
N.K. Mody, J:

1. Being aggrieved by the order dated 21/07/09 passed by XIII ADJ, Indore in MJC No.44/07 whereby application filed by appellants under Order 33 Rule 1 Civil Procedure Code was dismissed, present appeal has been filed.

2. Short facts of the case are that the appellants filed a suit on 03/10/07 for recovery of a sum of र2,41,16,400/-. Alongwith the suit an application under Order 33 Rule 1 Civil Procedure Code was filed alleging that for a suit of the aforesaid amount requisite Court fee is of र19,57,800/-. It was alleged that appellants are having no means to pay such a huge Court fee, therefore, appellants be permitted to prosecute the suit as indigent person. The application was opposed by the respondents. After hearing the parties learned trial Court dismissed the application, against which present appeal has been filed.

3. Learned counsel for the appellants argued at length and submits that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set aside. It is submitted that the report was called from the Collector, Ujjain, but without waiting for the report, impugned order has been passed. It is submitted that the evidence lead by the appellants were completely ignored by the learned Court below. Learned counsel placed reliance on a decision of this Court in the matter of Parasram v. Mst. Ratiabai, 1982 MPWN, 461 wherein hut of small value not given in schedule of property and the value of hut was wholly insufficient for payment, this Court held that non-disclosure is of no consequence. Further reliance is placed on a decision in the matter of Janak Kumari v. Land Acquisition Officer, 1998(I) MPWN, 164 wherein Divisional Bench of this Court has taken into consideration the explanation of Order 33 Rule 1 Civil Procedure Code and held that indigent person is a person not having sufficient means to pay Court fees. It was further held that while considering the application for property and income of spouse is irrelevant and extraneous. Reliance is also placed on a decision in the matter of Hukumchand v. Kailash, 1988-II MPWN, 58 wherein this Court held that suppression of property not malafide and also not sufficient to pay Court fees and application cannot be thrown out. Further reliance is placed on a decision in the matter of Vishnu v. Purkha, 1983 MPWN, 357 wherein Court fee payable was of र4,130/- and the appellant was in possession of a house of र500/-, this Court held that the appellant is indigent person. Reliance is also placed on a decision in the matter of Kishan v. Godawaribai, 1988-II, MPWN, 65 wherein this Court held that share in property does not amount means to pay Court fee. Learned counsel further submits that inspite of fact that respondents are party to the suit, respondents did not appear in witness box to explain that appellants were having sufficient means to pay Court fee, therefore, adverse inference ought to have been drawn against respondents. For this contention learned counsel placed reliance on a decision in the matter of Vidhyadhar v. Mankikrao, AIR 1999 SC 1441 wherein Hon'ble Apex Court held that not entering the witness box give rise to inference adverse against him. On the strength of aforesaid position of law learned counsel submits that the appeal filed by the appellants be allowed and impugned order passed by the learned Court below be set aside and appellants be permitted to prosecute the suit as an indigent person.

4. Learned counsel for respondents submits that since the fact that the appellants are having sufficient means to pay Court fee is evident from the evidence adduced by the appellants itself, therefore, there was no necessity for the respondents to enter into witness box. It is submitted that the report of Collector was also not necessary as the fact that appellants are having sufficient means to pay Court fee is proved from the facts stated in the application and evidence adduced by the appellants. It is submitted that the appellants are in trade. It is submitted that the firm of appellants was dissolved long back and the appellants are doing transactions in lacks, which is proved from the record itself. It is submitted that in the facts and circumstances of the case, appeal filed by the appellants has no merits and the same be dismissed.

5. From perusal of the record it is evident that earlier position of law was that advelorem Court fee was payable. The Court Fee Act is amended vide Court Fees Madhya Pradesh Amendment Act No.6/08 w.e.f. 02/04/08 whereby restriction of र1,50,000/- as ad valorem Court fee has been put in Schedule-I of Article 1-a of the Act. The effect of Court Fee Act is whether prospective or retrospective was considered by this Court in the matter of Fatehchand v. Land Acquisition and Rehabilitation, 2009(4) MPLJ 50 Divisional Bench of this Court held that amendment putting restriction of र1,50,000/- on ad valorem payment of Court fee is not retrospective in nature. Order 33 Rule 1 Civil Procedure Code reads as under:-

6. Suits by indigent persons -1. Suits may be instituted by (indigent person).- subject to the following provisions, any suit may be instituted by (an indigent person).

[Explanation I.-A person is an indigent person,-

(a) if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit, or

(b) where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the property exempt from attachment in execution of a decree, and the subject-matter of the suit.

Explanation II.- Any property which is acquired by a person after the presentation of his application for permission to sue as an indigent person, and before the decision of the application, shall be taken into account in considering the question whether or not the applicant is an indigent person.

Explanation III.- Whether the plaintiff sues in a representative capacity, the question whether he is an indigent person shall be determined with reference to the means possessed by him in such capacity]

7. From perusal of the record it is evident that the suit was filed on 03/10/07. In Para-10 of the plaint it is alleged that the outstanding amount comes to र1,56,60,000/-, on which amount of interest comes to र84,56,400/- and the payable amount outstanding comes to र2,41,16,400/-. In the plaint it is no where stated that interest calculated is with what rate. Similarly it is not stated that the interest calculated is for which period. In the application filed under Order 33 Rule 1 Civil Procedure Code itself the prayer is that the suit filed by the appellant be decreed. Alongwith the application under Order 33 Rule 1 Civil Procedure Code schedule of property of appellant Nos. 1, 2 & 3 has been filed, wherein there is no description of immovable property of appellant Nos. 1 & 2. While in the schedule of property filed on behalf of appellant No.3 it is alleged that the appellant No.3 is owner of a land bearing survey No.230/1 measuring 1 bigha, which is mortgaged with Bank of India against loan of र7,00,000/-, while the value of the property is र8 lakh. It has come in evidence that during pendency of litigation the dues of Bank has been cleared. The suit was filed on 03/10/07. Amendment in Court fees Act has come on 02/04/08. Since the suit was filed prior to amendment of Court fees Act, therefore, the Court fees which is payable comes to र19,57,800/-, while after the amendment which came in force w.e.f. 02/04/08 appellants are liable to pay Court fee of र1,50,000/-.

8. Keeping in view that the correct market value of the property owned by appellants is not on record and no enquiry was also conducted by getting the report from Collector of the concerned Distr

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ict, the appeal filed by the appellants is allowed and the impugned order passed by the learned Court below is set aside and the case is remanded to the learned Court below with a direction that in case appellants pay the Court fee of र1,50,000/- within a period of four weeks and also give an undertaking to the effect that appellants shall not transfer any of the property till the suit is finally decided and furnish a fresh schedule of properties describing complete details of all the properties alongwith current market value, then the learned Court below shall get the valuation report of the property through Collector and shall decide the application afresh. Parties are directed to remain present before the learned Court below on 08/10/2012. 9. With the aforesaid observations, appeal stands disposed of. 10. No order as to cost. Appeal allowed.
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