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2001 DIGILAW 158 (PAT)

Rambali Raut And Others v. Bachia And Others

2001-02-20

S.N.PATHAK

body2001
Judgment S.N.Pathak, J. 1. This Miscellaneous appeal is directed against the order dated 11th April, 1990, passed in Misc. Case No. 15 of 1988, by Sri B.K. Singh, District Judge, Motihari. There was an appeal before the lower Court (47 of 1983), which was dismissed in default on 22nd March, 1988 in default of payment of Court fee. Subsequently, there was an application for restoration under Order LXI, Rule 19 of the Code of Civil Procedure and this application was heard in Misc. Case No. 15 of 1988 which was dismissed on 11th April, 1990 and against that order, the present Misc. Appeal has been filed before this Court. 2. The case of the applicant-appellant is that Rambali Raut was ill from 15th March, 1988 to 13th April, 1988 and, hence, he could not deposit the Court-fee. So he claimed restoration of the appeal. The learned District Judge held that two witnesses were examined on behalf of applicant and the certificate of the Doctor was also exhibited but since the Medical Officer himself was not examined, the applicant-appellant could not prove that he was prevented by sufficient cause from appearing before the Court on 22nd March, 1988 to deposit the Court-fee. Hence, the aforesaid Misc. Case was dismissed. 3. Before me, it was contended that the Court of appeal had already exempted the applicant-appellant from payment of Court-fee and, hence, there was no question of payment of Court-fee and since there was no evidence contrary to it, the Misc. case should not have been dismissed. The certified copies of the orders of the appeal concerned have been filed. The order-sheet dated 2-1-1988 shows that there was a prayer by the appellants in the appeal (47 of 1983) to remit the Court-fee. The order dated 2-2-1988 showed that the appellant was directed to file income certificate. However, in view of non-filing of the income certificate and non-depositing of the Court-fee, the appeal was dismissed on 22nd March, 1988. Then, there was Misc. Case No. 15 of 1988 in which an order dated 4-6-1988 shows that income certificate was filed with a prayer to empt the appellant from paying the Court-fee. The order-sheet dated 16-3-1989 shows that the appellant was exempted from paying the Court fee and then, this Misc. case was admitted. Thereafter, it was heard and dismissed as stated above. 4. Case No. 15 of 1988 in which an order dated 4-6-1988 shows that income certificate was filed with a prayer to empt the appellant from paying the Court-fee. The order-sheet dated 16-3-1989 shows that the appellant was exempted from paying the Court fee and then, this Misc. case was admitted. Thereafter, it was heard and dismissed as stated above. 4. From the aforesaid order-sheets, it appears that the appellant was exempted from paying the Court-fee on the basis of income certificate. So there was an exemption, of course though not on the date, when the appeal was dismissed. However, when the appellant had led evidence of two witnesses before the Court that he was ill and the medical certificate was also filed and already the Court had exempted the appellant from paying the Court-fee, it should have been nice for the Court to allow the Misc. Case and hear the appeal on its merits, instead of refusing to re-admit it. It is the Courts duty to impart justice to the litigants. So technicality should not come in the way while deciding the rights of the parties on merit. Medical evidence is required only to prove the nature of illness. Non-examination of the Doctor may not prove the illness in particular but the certificate will show at least that the patient concerned was under the treatment of a Doctor. Moreover, when the subsequent development of exemption granted to the applicant-appellant from paying Court fee was there, the Court should have taken note of this fact and considered this aspect in dismissing or allowing the Misc. Case which was for re-admission of the appeal concerned. 5. In the result, I am of the opinion that the impugned order needs to be set aside. This Misc. Appeal is accordingly allowed and the impugned order passed in Misc. Case No. 15 of 1988 is set aside. It is ordered that Title Appeal No. 46 of 1988 shall be restored to its original file.