K M NIZAM Vs. UNION BANK OF INDIA

JUDGEMENT

(1.) This is an appeal under O. 43, R. 1(na) of the Code of Civil Procedure against an order dated 23-8-1990 passed by Shri R. C. Mishra, the Additional Judge to the Court of District Judge, Bhopal, in Civil Suit No. 61-B of 1984 (pending), rejecting the applications of the appellants for filing counter claims in forma pauperis.

(2.) The facts of this case are that the respondent No. 1 Union Bank of India filed a suit against the appellants for recovery of Rs. 1,70,392.62 P. The appellants, in their written statement, made a counter claim to the extent of Rs. 63,55,834.00 and prayed for a decree for the same after deducting whatever is found due to the plaintiff on account of advances made by it. In paragraph 26 of written statement, the defendant No. 2 i.e. the appellant No. 1 claimed exemption from payment of Court-fees in view of the Notification F.No. 9-1-83/ B-XXI, dated 1-4-1983. The appellant No. 1 pleaded that he is proprietor of the appellant No. 2 the firm concerned i.e. M/s Tower Engineering Works and is Hamal by caste. As per notification issued under Arts. 15(4) and 16(4) of the Constitution, his community has been categorised as backward class community. He further pleaded that he is unemployed and, therefore, his annual income group, for which a certificate was obtained by him, fits him into the exempted category of backward classes vide Notification F.No. 9-1-83-B-XXI, dated 1-4-1983. He, therefore, submitted that he is not liable to pay Court-fees. Relying on the principles laid down in Ramji Sharma v. M.P. High Court, Jabalpur, AIR 1989 Madh Pra 247, he submitted that elaborate enquiry as contemplated under O. 33 is not required to be made in the case of a party falling within the exempted category under the Notification. Along with his written statement, he filed before the lower Court, caste certificate obtained from the competent authority in which it is stated that he is a Muslim and Hamal by caste and comes within the declaration of backward classes as declared by the Madhya Pradesh Government. He also filed a certificate obtained from the Naib Tahsildar, Bhopal, in which his annual income is said to be Rs. 4800/- on the basis of the affidavit given by him. He has yet filed another document, a copy of letter dated 24-2-1978 issued by the Branch Manager of the Union Bank of India addressed to the Regional Manager, Side Industrial Units, J.G.M.'s Office, Bombay of the said Bank, in which it is mentioned that the borrower is totally dependent upon this factory and quite a sizable amount of his own is invested. The plaintiff opposed the contention of the appellant No. 1 being an indigent person or entitled to exemption from payment of Court-fees within the purview of the aforesaid Notification.

(3.) The lower Court, relying on the principles laid down in Ramji Sharma v. M.P. High Court, Jabalpur (supra), proceeded with the matter without entering into an enquiry as required under O. 33, Rr. 1 to 18 and S. 141 of the Code of Civil Procedure. The trial Court accordingly framed a preliminary issue as to whether the defendants 1 and 2 (the appellants) are entitled to claim exemption from payment of Court-fees and answered the same in negative. The issue framed is reproduced as under: