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1991 DIGILAW 353 (ORI)

NILLA JAGANNADHAM v. STATE OF ORISSA

1991-09-24

P.C.MISRA

body1991
JUDGMENT : P.C. Misra, J. - The plaintiff in Title Suit No. 17 of 1990 of the Court of Subordinate Judga, Pariakhemundi is the petitioner in this, revision. The suit has been filed for recovery of certain properties which belonged to her parents. She filed an application u/s 18-A of the Court-fees Act praying for exemption of court-fee as, according to her, she satisfies all the requirements of the said section. The learned trial Court rejected that application on the ground that her husband is an ex-military man and is getting Rs. 500/- per month. The plaintiff thereafter filed an application for review of the said order, which was registered as M. J. C. No. 40 of 1990. The ground for review was that her application u/s 13-A of the Court-fees Act was rejected on irrelevant ground and the Court has committed an error apparent on the face of the record in rejecting the application. It was stated that there was sufficient cause for reconsideration of the matter by way of review. The State of Orissa and its officers, who were impleaded as defendants objected to the said petition. The ground stated in their objection was that the application does not lie within the meaning of Order 47, Rule 1 of the Code of Civil Procedure. Their further contention is that the rejection of the petition by the Court was on valid ground as her husband's income has also to be taken into consideration for the purpose of calculating the annual income of the plaintiff. The learned trial Court after hearing both parties on this application for review has rejected the same by the impugned order. Hence this revision. 2. At the stage of admission notice was issued to the opposite parties indicating that the revision is likely to be disposed of at that stage. The opp. parties have entered appearance pursuant to the notice and are ready for contesting the matter. Hence, with the consent of both parties the revision is taken up for final disposal and for that purpose learned counsel for both parties were heard at length. 3. There is no dispute between the parties that the nature of the suit filed comes within the purview of Section 18-A of the Court-fees Act, as it is a suit for recovery of property of her parents. 3. There is no dispute between the parties that the nature of the suit filed comes within the purview of Section 18-A of the Court-fees Act, as it is a suit for recovery of property of her parents. It is also not disputed that the plaintiff has no income of her own. Thus, the question to be determined in this revision is as to whether an application for review is maintainable after the Court having once decided the application u/s 18-A on merit and whether the income of the husband can be taken into consideration in computing the income of the wife for the purpose of Section 18-A of the Act. 4. Order "47, Rule 1 of the. CPC authorises the Court which passed the order to review the same at the instance of a party considering himself aggrieved by it, that if some new and important matter or evidence which is relevant for the purpose was discovered which could not be produced after exercise of due diligence or if there appears to be . some mistake or error apparent on the face of the record or. there exists any other sufficient reason, the order passed u/s 18-A of the Court-fees Act is hot an appealable order. Thus, an application for review will be maintainable provided the petitioner satisfies that there exists any of the aforesaid three grounds for allowing it. 5. Section 18-A of the Court-fees Act prescribes that certain categories of suits filed by a woman-, whose annual income does not exceed three thousand rupees shall not be chargeable with court-fees. 4 have already said that the present suit is one of such categories enumerated in the said section. If the plaintiff is a person whose annual income does not exceed three thousand rupees, the plaint shall not be chargeable with court-fees. Whether she lives with her husband or remains away from him is immaterial for the purpose of Section 18-A as the woman is an individual by herself and it is her income alone which is relevant for the said purpose. Her husband's income cannot be her income though she might have access to it. The purpose of Section 18-A is to help the weaker section of the society to obtain relief's specified in the said section whose income does not exceed three thousand rupees. Her husband's income cannot be her income though she might have access to it. The purpose of Section 18-A is to help the weaker section of the society to obtain relief's specified in the said section whose income does not exceed three thousand rupees. The section does not contemplate that the income of any other person in the family, be her husband or son; shall be taken into consideration in order to assess the: income of the plaintiff. The observation of the learned' trial Court in the impugned order that the present petitioner having not filed any case for maintenance against her husband, he must be taken to be construed as a separate entity distinguished from the income and property of her husband/ in my view is thoroughly unsupportable. 6. In the facts and circumstances of the case, it can be said that the review prayed for comes within the meaning of the clause "for any other sufficient reason" and the same is permissible. The Court by rejecting the said order has fatted to exercise jurisdiction vested in it by law and, therefore, the order is revisable u/s 115 of the C. P. C. 7. In the result, I would allow this revision, set aside the impugned order and further direct that the plaintiff be exempted from payment of court-fees. There shall be no order as to costs of this Court. Final Result : Allowed