MOHINI ZUTSHI Vs. SHIV ZUTSHI

JUDGEMENT

(1.) RESPONDENT No.1 was declared an indigent person by the District Judge by an order dated 10th April, 1995. This order has been challenged by this Revision Petition. Preliminary objections has been taken that no revision is maintainable against the order impugned. Mr. K.N. Bhat submits that it is a settled question of law that no revision is maintainable in view of the fact that it is a matter between the Government and the Plaintiff because the Court Fee goes to the State Treasury. He has drawn my attention to the judgement of the Supreme Court reported in 1961 SC P. 1299. In the case before Supreme Court, the question was whether under Section 115 of the Code of Civil Procedure, the defendants can challenge the order by which the question of having paid the proper Court Fee has been decided. The Court found that even if the defendants plea that the proper Court fees has not been paid was honest, even then, he was only assisting the court. The court was of the opinion that Section 115 of the C.P.C. does not give a right to party to challenge such order in the revision, because the payment of Court Fee is primarily a question between the Plaintiff and the State.

(2.) ON the basis of this authority, it is contended by Mr. Bhat that no case has been decided against the defendants, the present petitioner, in terms of Section 115 of CPC. He has also drawn my attention to judgement reported in 1962 Kashmir Law Journal P. 183, this Court also held that no revision is maintainable u/s 115 unless the question of court fee involves a question of jurisdiction. Such a plea has not been taken in this case. Another judgement on which Mr. Bhat relies is a judgement of Madras High Court reported in 1961 AIR P.71. The High Court of Madras held, if the order declaring a person to be indigent person is challenged by any party other than the State, the revision shal1 not be maintainable.

(3.) MR . Goja appearing for the other side submits that where order is perverse and erroneous, it is liable to be set aside under Section 115 of the Civil Procedure Code. He has relied on AIR 1975 Gujarat P.94.