MOHAMMAD SADIK Vs. KHURSHEED AHMED

JUDGEMENT

(1.) A question has been raised in this petition under Article 227 of the Constitution of India, whether on a plaint while claiming exemption from payment of Court Fees, proceedings under Order 33, Rules 1 and 2 of Code of Civil Procedure (hereinafter referred to as CPC for brevity) are required to be done or merely because of the pleadings in the plaint, proceedings can be done for grant of such exemption. Facts giving rise to filing of this writ petition are that the respondent/plaintiff filed a suit seeking possession, valuing his suit for Rs. 40,000/- and damages Rs. 7,000/- against the petitioners, alleging that the petitioners were the lessees of the respondent/plaintiff. However, they were not making the payment of the lease amount. As a result, a cause of action arose in favour of the respondent/plaintiff for filing of the said suit in the year 2004. The suit was presented in the year 2005. For the purposes of payment of Court Fees in paragraph 8 of the plaint it was contended that the suit was valued at Rs. 40,000/- for possession and Rs. 7,000/- for damages and the respondent being a member of the weaker section of society, was entitled to the exemption from payment of Court Fees in view of the Notification of the State Government dated 1-4-1983.

(2.) On presentation of the plaint, the same was registered as Miscellaneous Judicial Case and an enquiry was conducted by the Court whether the respondent was entitled to grant of any exemption from payment of Court Fees or not. The notices were issued to the competent authorities with respect to submitting a report as also the petitioners herein who were defendants before the Civil Court. The respondent submitted his evidence, the proof of income as on the date of presenting the plaint and demonstrated that his total income on the date of presentation of the suit was not more than six thousand rupees per annum from all sources. The statements of witnesses were recorded and the enquiry was conducted when after such prolonged proceedings, an objection was filed by the petitioners herein under section 151 of Civil Procedure Code raising contentions that the proceedings were required to be done in the manner indicated under Order 33, Rules 1 and 2 of Civil Procedure Code for examining whether the respondent was an indigent person and was not required to pay any Court Fees, but the proceedings were not done in the said manner. A reply to the said objection was filed by the respondent and since the said application has been rejected by the impugned order dated 24-7-2012, the present writ petition is required to be filed under Article 227 of the Constitution of India.

(3.) It is, vehemently, contended by learned counsel for petitioners that in fact the respondent was claiming exemption, in his capacity as an indigent person whose income was not more than six thousand rupees per annum and, therefore, he was required to move an application independently under Order 33, Rules 1 and 2 of Civil Procedure Code, seeking permission to sue as an indigent person. No such application was made and, therefore, it was not proper for the Court below to conduct an enquiry with respect to the financial status of the respondent. The entire proceedings done in this respect are void ab-initio and against the procedure laid down in the Civil Procedure Code. When the objection was raised in this respect, the same has been rejected without looking to the law laid down by the Courts, therefore, the order impugned is bad in law. In fact, the suit as presented by the respondent is liable to be dismissed.