Tower Engg. Works vs Union Bank of India and Others

S.K. Pande, J.—This revision u/s 115 of CPC is directed against the order dated 15-9-95, passed by 7th ADJ, Bhopal in C.S. No. 61-B/89.

The plaintiff/non-applicants - Union Bank of India instituted C.S. No. 61-B/89 in the Court of 7th ADJ, Bhopal for recovery of arrears of debt valued at Rs. 1,70,392.60 with interest etc. Defendant/applicant filed a counter claim of Rs. 63,55,834/- and also claimed exemption from payment of Court fee on the ground of State Government Notification dated 1-4-83. The exemption from payment of Court fee, as claimed has been resisted by the plain-tiff/non-applicant. Vide impugned order dated 15-9-95, the Court below held that in any case the annual income of applicant at the time of filing of counter claim was more than Rs. 6,000/- and that defendant/applicant is not entitled to seek exemption from payment of Court fee with reference to the State Government Notification dated 1-4-83. Hence this revision.

State Government Notification No. F-9-83-XXI, dated 1st April, 1983 is under :--

"In exercise of the powers conferred by Section 35 of the Court Fees Act, 1870 (No. 7 of 1870) the Stale Government hereby remits in the whole of the State of Madhya Pradesh, the Court fees mentioned in Articles 1-A and 2 of the First Schedule and Articles 5, 17 and 21 of the Second Schedule to the said Act, payable on plaint by the following categories of persons whose annual income immediately preceding the date of presentation of plaint from all sources does not exceed rules six thousand namely;"

In Chandulal Ghasiram and Ors. v. Central Bank of India and Ors. 1991 (2) MPJR 163 and Ramswaroop Vashistha v. State of M.P. 1991 (2) MPJR 166, it has been held that the notification is restricted to plaint only. It docs not apply to memorandum of appeal etc. Under Order 8 Rule 6-A, a defendant in a suit may, in addition to his right of pleading a set-off under Rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff. Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter claim. Sub-rule (4) is to the effect that counter claim shall be treated as a plaint and governed by the rules applicable to plaints.

Defendant/applicant has emphasized that a counter-claim, therefore, is to be treated as plaint. In an unreported decision of this Court in MPEB Jabalpur v. Mst. Sugan Bai and Ors., F.A. No. 12/90, it has been held that remission of Court fees under the State Government Notification dated 1-4-83 is available only in respect of a plaint. It is not available in an appeal or a counter claim made in an appeal. Order 8 Rule 6-A (4) lays down the procedure for deciding the counter claim. For this purpose, the counter claim shall be treated as a plaint and governed by rules applicable to plaint. It does not mean that exemption from payment of Court fee available on plaint with reference to State Government Notification dated 1-4-83 shall be applicable to the counter claim also.

The Court below while examining the case on merits has held that certificate issued by Nisar Ahmad Rizvi, Naib Tehsildar can not be relied as it was issued only on the basis of affidavit filed by the party concerned. Naib Tehsildar had no knowledge of other immovable properties of applicant situated in Tehsil Bairasiya. In March, 1987, as per written statement, defendant/applicant has incurred an expenditure of Rs. 2,25,000/- in repairing etc. of the factory itself. Therefore, the Court below has rightly concluded that in any case the annual income of the defendant/applicant can not be said to be less than Rs. 6000/-, as claimed.

In the circumstances, the Court below vide impugned order rightly directed the defendant/applicant to pay requisite Court fee on counter claim of Rs. 63,55,834/-. The order impugned does not suffer from any material irregularity. Revision fails and is dismissed. Applicant shall bear his cost and pay cost of the non-applicant/Union Bank of India. Counsel fee as per rules or certificate (whichever is less).