Kamlesh vs Tara Devi

U.C. Maheshwari, J.—The petitioners-defendants have filed this petition under Article 227 of the Constitution of India being aggrieved by the order dated 9.4.2013, (Ann. P-4) passed by the Vth Additional District Judge, Sagar in MJC No. 22/2011, whereby the application of the respondents-plaintiffs filed under the notification of 1984, which is further amended on 14.2.2011 promulgated by the State of M.P. u/s 35 of the Court Fee Act has been allowed and the respondent No. 1 is extended the benefit of exemption from payment of requisite court fee on the impugned suit. The petitioners'' counsel after taking me through the papers placed on record argued that looking to the number of assets of respondent No. 1-the plaintiff as stated in the reply filed on behalf of respondent No. 1 in the trial court so also in the impugned order, the respondent No. 1 could not have been extended the benefit of aforesaid notification. In continuation he said that out of aforesaid property, the respondent No. 1 is having the income of more than Rs. 25,000/- p.a. but on appreciation of the evidence recorded by the trial court such aspect has not been considered with proper approach. He also argued that the trial court has committed error in relying on the earlier decision of this court in the matter of Shamubai and others Vs. Surendrasingh and others reported in M.P. Weekly Note 2011 (III) MPWN 107 in extending the aforesaid benefit. Such case is squarely distinguishable from the facts of the case at hand. The cited case was decided taking into consideration the certificate of income of the concerning plaintiff issued by the Tahsildar while in the present matter the case was decided only on the basis of oral evidence adduced by the parties and no such report regarding income of respondent No. 1 was requisitioned from the court of Tahsildar. So in such premises, the impugned order is not sustainable and prayed to set aside the same by dismissing the impugned application of respondent No. 1 by admitting and allowing this petition.

Keeping in view the arguments advanced, I have carefully gone through the papers placed on record alongwith the impugned order as well as aforesaid case referred by the counsel.

True it is that above mentioned cited case was decided by the Coordinate Bench of this court taking into consideration some income certificate of the plaintiff issued by the Tahsildar, while the impugned case was decided by the trial court on the basis of evidence adduced by the parties.

I am of the considered view that to extend the benefit of aforesaid notification to the plaintiff like the respondent No. 1, the only enquiry is needed but under the provision of Section 35 of the Court Fee Act in the aforesaid notification no procedure of such enquiry has been provided. In such premises, the trial court had a discretion to enquiry into the matter according to its own way and decide the same in judicial manner.

Anywhere, in the statute where the enquiry word is used, the court is not always bound to call the report of any authority and appreciate the evidence in the light of such report. If on the basis of evidence adduced by the parties, the case could be decided, then there is no need to call the report of any authority either for assessing the annual income or the assets of the concerning plaintiff. In the case at hand, it is apparent that both the parties were extended opportunity to adduce the evidence on the aforesaid question and thereafter on appreciation of the evidence the impugned order has been passed and benefit of aforesaid notification has been extended to the respondent no. 1. So in such premises, only on the aforesaid technical ground that report of Tahsildar was not requisitioned, there is no scope in this petition even for admission.

Coming to consider the factual aspect of the matter, after perusing the impugned order and the deposition of the witnesses examined on behalf of the parties, I am of the considered view that evidence has been appreciated properly by the trial court for extending the aforesaid benefit to the respondent No. 1 by the impugned order. So in such premises, the same does not require any interference at this stage under Article 227 of the Constitution of India. Consequently this petition being devoid of any merit is hereby dismissed. However, it is observed that in pendency of the suit, if any source of regular income of more than Rs. 25,000/- p.a. of the respondent No. 1 is pointed out by the petitioners before the court with some authentic document, then the trial court shall be at liberty to reconsider such aspect and pass appropriate order in that regard. Cc as per rules.