BIRSINGH Vs. GHANSRAM

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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.