SAMBU RAM AND ANOTHER Vs. HARIHAR PRASAD

JUDGEMENT

(1.) This Revision is directed against the order dated 1st March 1994 whereby the learned Civil Judge, East, declined to accept the request made on behalf of the defendant-petitioners that the matter regarding the payment of Court fees should be decided as the first issue.

(2.) The plaintiff-respondent filed the suit from which this Revision has arisen along with an affidavit that he is not liable to pay court fees as his annual income is below Rs. 25,000.00which entitles him to exemption from payment of court fees under the provisions of The Sikkim Court Fees (Exemption and Miscellaneous Provisions) Act, 1983. Thereupon, the case was registered as a civil suit. During the pendency of the suit, an application was made by the petitioners that the plaintiff-respondent was not entitled to exemption as his income was more than what was stated by the plaintiff in his affidavit and that this matter should be decided before proceeding further in the case. Learned Trial Court, after taking notice of the provisions of the Act and the amendments made thereto, held that there is no provisions that a suit cannot be registered unless court fee matter has been decided and the Act itself provides that the prayer for cancellation of exemption can be granted, at any time before the passing of judgment or final order. Thus the learned Civil Judge postponed the decision on the question of exemption of court fees, as the Act itself provided for cancellation of grant of exemption at anytime before the final judgment was rendered.

(3.) Sec. 3 of the Sikkim Court-Fees (Exemption And Miscellaneous Provisions) Act, 1983 as it was enacted originally, provides; "Notwithstanding anything contained in any law relating to the payment of court fees, for the time being in force, no court-fees shall be payable by a person whose annual income from all sources does not exceed rupees twenty five thousand." Sec. 3A was added by the Sikkim Court Fees (Exemption and Miscellaneous Provisions) Act, 1985 which provides that a person claiming exemption under Sec. 3 shall satisfy the court by filing an affidavit and if so required by the court by adducing oral or documentary evidence that the annual income of such person from all sources is less than twenty-five thousand rupees and the court may cancel the exemption granted, at anytime before the passing of judgment or final order, on being satisfied that such exemption ought not to have been granted. By the Sikkim Court Fees (Exemption and Miscellaneous Provisions) Amendment Act, 1988, section 3 of the original Act was amended inasmuch as the words Rs. 25,000.00 were replaced by Rs. 10,000.00. After sub-section (2), sub-section (3) was added to section 3A which says that "No Court shall grant the exemption as claimed under section 3 without giving notice to the opposite party and if necessary, conducting an enquiry and passing the necessary orders thereof. The combined effect of all these provisions, as they stand now, is that no court fee is payable by a person whose annual income from all sources does not exceed Rs. 10,000.00 and it is the duty of the person claiming exemption to satisfy the Court that his annual income from all sources does not exceed that amount and that the Court is not to grant exemption without giving notice to the opposite party and further that an exemption once granted can be cancelled subsequently before the case is finally decided. It is no doubt true that the Act does not specifically stipulate that a plaint shall not be registered as a civil suit until the controversy about payment of court fees has been decided by the Court. It is also true that an exemption once granted can be cancelled subsequently by the Court. However, it is implicit that a plaint cannot be registered as a civil suit unless exemption for payment of court fees has been granted by the Court or proper court fees has been paid by the plaintiff. Order VII Rule 1(i) Civil Procedure Code requires a plaint to contain a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court-fees, so far as the case admits. This provision is not by way of an idle formality. One of the objects behind this provision is that the defendant should know whether proper court fees has been paid by the plaintiff. One purpose of requiring a plaintiff to pay court fees is that the State earns revenue. The other purpose is to protect a defendant against frivolous or exaggerated claim. Furthermore, Order XXXIII of the Code of Civil Procedure which provides for a suit by indigent persons stipulated that a plaint by such a person is to be treated as an application and not as a suit until the application is granted. It is only after the application has been granted that under rule 8, the application is to be numbered and registered as a suit. It is obvious that unless the question regarding the payment of court fees or of exemption has been decided by the Court, the plaint is to be treated merely an application and not a suit. The fact that an exemption once granted can be cancelled at a subsequent stage does not detract from this legal position because even if exemption has been granted-at the earlier stage, facts may come to notice subsequently showing that the grant was not justified. Proper course which the Civil Court should adopt where a plaint is filed accompanying an application for exemption from payment of court fees is to treat the plaint as an application and register the case as a misc. case and then, after following the procedure prescribed in the Act, to decide whether the applicant is entitled; to exemption. If the applicant is held entitled to, exemption, the application is to be registered as a civil suit. If not, the applicant has to be given some time to pay court fees. If the plaintiff pays the requisite court fees within the, time granted, the plaint has to be registered as a civil suit; otherwise, the plaint has to be rejected. If after the grant of the exemption the defendant moves an application for cancellation of the exemption, the matter should be decided expeditiously before proceeding further with the suit on merit, unless the Court I finds that the application for cancellation is frivolous or has been moved only to delay the trial of the suit.