BATAKRUSHNA SETHY Vs. MUKTILATA KAR

JUDGEMENT

(1.) Challenging the order passed by the learned Civil Judge (Sr. Divn.), 1st Court, Cuttack in Civil Suit No. 30 of 2007 dated 16-11-2010 and 17-12-2010 vide Annexures-6 and 9 respectively, the writ petition has been filed by the present petitioners, who are the plaintiffs in the said Suit.

(2.) The petitioners as plaintiffs have filed a suit for declaration of their right of easement over the 'A' Schedule land described in the plaint and also further declaration that the opposite parties (defendants) have no manner of right, title and interest over the suit schedule 'A' property and to restrain them permanently from changing the nature and character of the suit land not to prevent the plaintiffs-petitioners to use the suit land as their path way etc. The suit was valued at Rs. 3,11,000/-, but since because the plaintiffs-petitioners claimed to be scheduled castes, (DHOBA) prayed for exemption of Court fees which was allowed by the Court below. The opposite parties (defendants) in the said Suit entered appearance and-have filed their written statement. When pleadings were complete and issues were settlediihearing of the suit was taken up. Thepresent petitioner No.5 who is also plaintiff No.5 in Civil Suit No. 30 of 2007 tendered his evidence and in his cross-examination he deposed that in the year 1984 he adopted Christianity and started living in a rented house at Mission Road, Cuttack. When P. W. 1, namely, the petitioner plaintiff No. 5 deposed in Court on oath that he is a Christian since 1984, opposite party Nos. 1 to 4 (Defendants) filed a petition under Section 12 of the Court-fees Act read with Order 7, Rule 11(d) of the Civil Procedure Code on 17-3-2010 praying the Court therein to recall the order of exempting the petitioner-plaintiffs from paying the Court fees and to direct the plaintiffs to pay Court Fees within a stipulated period failing which the plaint should be rejected. The present petitioners filed their objection to such prayer of defendant Nos. 1 to 4. The learned Court below heard the parties and passed the impugned order on 16-11-2010 (Annexure-6) directing the present petitioner-plaintiffs to pay Court Fees of Rs. 10635/-as per the valuation given in the plaint and recalled the order dated 22-1-2007 wherein the petitioner plaintiffs were exempted from paying Court fees. Simultaneously, the Court below gave seven days time to the petitioner-plaintiffs to pay Court fees failing which the plaint would be rejected. Thereafter, the petitioner plaintiffs took time for payment of the Court fees. Ultimately, on 4-12-2010 a petition was filed by the plaintiffs to recall and modify the order dated 16-11-2010. The said prayer was rejected by the learned Court below on the ground that if the petitioner plaintiffs were aggrieved by the impugned order under Annexure-6 they can challenge the said order before a higher forum. Those orders of the learned Civil Judge (Sr. Divn.), 1st Court, Cuttack under Annexures-6 and 9 are under challenges in this writ petition.

(3.) I have heard learned counsel appearing for the respective parties including learned Advocate General, who appeared for the State. Learned counsel appearing for the petitioners in this case contended that the evidence of P. W. 1 during his cross-examination simply shows that in 1984 he adopted Christianity but that cannot amount to professing Christianity by the petitioner No.4. It was contended that when the petitioner plaintiffs are 'Dhoba' by caste they are not required to pay any Court fees and the impugned order at Annexure-6 be set aside. It was also contended that since in the written statement the opposite party-defendants did not raise at all the point that the petitioner plaintiff No.5 is a 'Christian', the defendants are estopped from questioning the same in a later part of the proceeding.