Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 462 (MP)

Krishna Sharma v. Naresh Tiwari

2010-04-22

N.K.MODY, S.R.WAGHMARE

body2010
ORDER Mody, J. -- 1. Being aggrieved by the order dated 5.11.2008 passed by I Addl. Judge to the Court of I ADJ, Dhar in MJC No. 9/2005 whereby the application filed by the petitioner for exemption from court fee was dismissed and consequently the suit was dismissed, the present petition has been filed. 2. Short facts of the case are that petitioner filed a suit against the respondent wherein it was alleged that petitioner and respondent No.5 are married daughters of Basant Kumar Tiwari who died in the year 1972. It was alleged that respondent Nos. 1 to 3 are the sons and respondent No.4 is widow. It was alleged that after the death of Basant Kumar, the petitioner and respondents succeeded the property including House No. 198/1, Murai Mohalla, Indore having 1/6th share each. In the suit it was alleged that in the year 2001 consent to sell and property was taken by the respondents and petitioner but no amount was paid to the petitioner. It was alleged that since the sale was for a consideration of Rs. 40,000/-, therefore, petitioner is entitled for a sum of Rs. 6,66,000/- which was claimed in the suit. So far as court fee is concerned, it was alleged that as per notification dated 1.4.1983, the petitioner being a woman having income below Rs. 6,000/- per annum, is exempted from payment of court fee. After holding an enquiry the application was dismissed against which the present petition has been filed. 3. A preliminary objection was raised by the counsel for the respondents alleging that petition is not maintainable under Article 227 of the Constitution of India as since the suit filed by the petitioner was dismissed upon an application filed by the respondents under Order VII Rule 11 CPC, therefore against that order remedy of appeal is available either under section 96 CPC or under Order XLIII Rule 1 CPC. Learned counsel placed reliance on a decision in the matter of Triveni Devi v. Dr. J.P. Shanna, 1995 (II) MPWN 116 , wherein this Court has held that "in a case where Order VII Rule 11 CPC has been passed, it amounts to a decree and only regular appeal lies and no revision or miscellaneous appeal is maintainable." 4. Learned counsel placed reliance on a decision in the matter of Triveni Devi v. Dr. J.P. Shanna, 1995 (II) MPWN 116 , wherein this Court has held that "in a case where Order VII Rule 11 CPC has been passed, it amounts to a decree and only regular appeal lies and no revision or miscellaneous appeal is maintainable." 4. Reliance was also placed on a decision in the matter of Prakash Chandra Agrawal v. Central Bank of India 1998 (I) MPWN 17 wherein this Court held that in a case where suit dismissed for want of proper Court fees is a decree and appeal lies against such dismissal. 5. On the strength of aforesaid preliminary objection it is submitted that the petition filed by the petitioner be dismissed. 6. Learned counsel for petitioner submits that it is not the suit which was\ pending before learned Court below. The suit filed by the petitioner was registered by the learned Court below as MJC as it was not on proper court fee. It is submitted that application filed by the petitioner has wrongly been dismissed. It is submitted that for the purpose of assessment, the income of the petitioner ought to have been below than Rs. 6,000/- per month, learned trial Court has taken into consideration the income of the husband which is illegal, hence order passed by the learned Court below deserves to be set aside. 7. For the contention reliance is placed on a decision in the matter of Vimlabai v. State of M.P. 1997 (1) MPLJ 227 wherein in a case where person belonging to the particular class as mentioned in the notification entitled to exemption against payment of court fees as specified if his/her earning is less than Rs. 6,000/-, it was held that income of any other person cannot be considered. So far as maintainability is concerned, reliance is placed on a decision in the matter of Munian v. Kesava Pandithan, AIR 1955 Madras 467, wherein order refusing leave to sue as pauper directing payment of court fee "it was held by Madras High Court that Order if amounts to rejection of plaint under Order 7 Rule 11 and revision against order refusing leave is maintainable." 8. On the strength of aforesaid decision, learned counsel submits that preliminary objection raised by respondents be rejected. 9. On the strength of aforesaid decision, learned counsel submits that preliminary objection raised by respondents be rejected. 9. After taking into consideration all the facts and circumstances of the case and keeping in view the fact that suit filed by the petitioner was registered as MJC was dismissed, against that order the remedy is provided u/s 96 CPC itself, therefore, there was no justification to allow the petitioner to invoke the writ jurisdiction of this Court. 10. In these facts and circumstances, the preliminary objection raised by the respondents is allowed and writ petition filed by the petitioner is dismissed with a direction to file an appeal against the Order under the provisions of CPC and it is also under the provisions of CPC to facilitate him. The counsel for the petitioner is directed to take back the certified copy of the order (s) after furnishing the authenticated copy and it is also made clear that time spent by the petitioners in prosecuting the present petition, shall be excluded as petitioner was prosecuting the present petition bona-fidely. 11. With the aforesaid observation the petition stands disposed of.