SURESH KUMAR Vs. STATE

JUDGEMENT

(1.) The appellant has challenged that part of the order passed by the Additional Judge to the Court of District Judge, Shivpuri, in Civil Appeal No.30-A of 1983 dated 25-3-1985, by which he has been refused the refund of the Court-fees, as provided in S.13 of the M.P. Court-fees Act, 1870.

(2.) The short facts out of which this appeal arises, are that the appellant filed a suit against the respondents in the Court of Second Civil Judge Class II, Shivpuri, being Civil Suit No.104A of 1982. On 5-1-1983 this suit was dismissed. The appellant preferred an appeal in the Court of the Additional District Judge, Shivpuri. That appeal was disposed of by the first appellate Court and in paras 10 and 11 of the impugned judgment, the appellate Court framed 3 issues, quashed the judgment and decree passed by the trial Court and passed a wholesome remand order directing the trial Court to record the evidence of the parties on the issues according to law. It was also directed that the parties shall be at liberty to make amendments in their respective pleadings and adduce evidence. It was, thus, clearly a wholesome remand order. The appellant is not aggrieved by this order. He is aggrieved by the order passed by the first appellate Court in Para 14 of the impugned judgment.

(3.) In Para 14 of the impugned judgment, the appellate Court has observed that as the plaintiff-appellant has not filed any application before the trial Court for framing correct issues, he is not entitled for the refund of the Court-fees under S. 13 of the M. P. Court-fees Act, 1870 (for short, hereinafter referred to as 'the Act'). This part of the order passed by the appellate Court is prima facie incorrect. It is the duty of the Court, after perusal of the pleadings of the parties, to frame the issues. If there is any defect in framing of the issues, and any of the parties does not pray for correction, addition or substitution of the issues, then that party cannot be penalised by a Court of law. The penalty imposed by the learned first appellate Court deserves to be set aside.