BISARTI BAL Vs. RATNAWALI

JUDGEMENT

(1.) Appellants have challenged judgment and decree dated 31/3/2005 by IInd Additional District Judge (Fast Track Court), Katni in Civil Appeal No. 4-A of 2004 by which the appellate Court has remanded the matter to the trial Court.

(2.) Facts of the case are that respondent Smt. Ratnawali filed a suit for declaration and permanent injunction. In the said suit, appellants filed a counter claim but had not paid Court fee thereon. The plaintiff/respondent because of the non-payment of the Court fee had not filed any written statement to the counter claim as it was not entertained by the trial Court. The trial Court framed issues and after recording evidence, at the time of the decision of the suit, found that the appellants have not paid court fee on the counter claim and asked the appellants to pay court fee on the counter claim. The appellants paid court fee and thereafter, the suit was decided without extending any opportunity to the plaintiff to file written statement in respect of the counter claim. The trial Court dismissed the suit but decreed the counter claim. Against judgment and decree passed by the trial Court, plaintiff preferred a first Appeal. The first appellate Court found that after payment of the court fee, counter claim was competent and the plaintiff was entitled to file written statement in the case. On this ground appellate Court remanded the case directing the trial Court to give an opportunity to the plaintiff to file written statement and thereafter, to decide the matter in accordance with law. This order is under challenge in this appeal.

(3.) Learned counsel for appellant assailed aforesaid order on following grounds :-