Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 1196 (ORI)

Pranabandhu Dalai v. Baburam Parida

2017-10-25

BISWANATH RATH

body2017
JUDGMENT : BISWANATH RATH, J. 1. This matter involves payment of ad valorem court-fee through the impugned order. 2. Challenging the direction of the lower appellate court directing the petitioner to pay ad valorem court-fee in the decree involved in the appeal bearing R.F.A. No.231/2016, Sri S.K.Mishra, learned counsel for the petitioner referring to the order part of the judgment in the suit contended that for the specific challenge involving the partition only, the lower appellate court was not proper in directing the petitioner, appellant therein to pay ad valorem court-fee. Taking this Court to the plaint averments as well as the averments in the appeal memorandum involving R.F.A. No.231/2016, Sri Mishra, learned counsel for the petitioner tried to justify his claim. 3. Sri A.R.Dash, learned counsel for the opposite party, while opposing the stand taken by the learned counsel for the petitioner and referring to the decree involved in the plaint and the challenge involved in the appeal to the whole decree of the lower court, on the other hand, submitted that there is no illegality committed by the lower appellate court in asking the petitioner to pay ad valorem court-fee. 4. Sri U.K.Sahu, learned Additional Standing Counsel, supporting the stand taken by Sri Dash, learned counsel for the opposite party, submitted that there is no infirmity in the impugned direction leaving any scope for this Court to interfere with the same and hence, requested for dismissal of this case. 5. Considering the rival contentions of the parties, this Court feels it appropriate to take into consideration the relief involved in the suit. Looking to the plaint involving C.S. No.27/2012, this Court finds, the opposite party-plaintiff had the following prayer :- “(I) Allotting half share to the plaintiff from western side given in the schedule-C. (II) Let it be declared that the alleged R.O.R. bearing khata no.815/108 and the order in O.L.R. case No.577/2002 are illegal, invalid and act of without jurisdiction and it is not binding against plaintiff or the suit property. (III) Let it be further declared, direct the defendant to make amicable partition within a time fixed by the court, failing which the court be pleased to appoint a survey knowing commissioner to make partition of suit property according to their share and pass a final decree accepting the report of the Commissioner. (III) Let it be further declared, direct the defendant to make amicable partition within a time fixed by the court, failing which the court be pleased to appoint a survey knowing commissioner to make partition of suit property according to their share and pass a final decree accepting the report of the Commissioner. (IV) Let such other equitable relief to which plaintiff is entitled may be granted in their favour considering the facts and circumstances of the case. (V) Let the cost of the suit be decreed against the defendant.” Considering the pleadings in the plaint, the objection filed by way of written statement as well as counter claim, the trial court framed the following issues :- “(I) Whether the suit is maintainable? (II) Whether there is proper cause of action to file the suit? (III) Whether the suit is hit u/S 67 of the O.L.R. Act. (IV) Whether the suit property is a joint or separate properties of the parties? (V) Whether the construction existing over plot No.993/3065 is exclusively made by the defendant or by the parties jointly? (VI) Whether the order passed in O.L.R. Case No.577/2002 is obtained by fraud and is binding on the parties? (VII) Whether the plaintiff is entitled for a partition and if so, to what extent? VIII) Whether the defendant has right, title, interest and possession over plot no.994/3065. IX) To what other relief, the plaintiff is entitled to?” 6. Perusal of the issues as indicated above, this Court finds, looking to the claim made in the suit and the objection therein, the trial court had framed the Issues, vide Issue nos.3, 5, 6, 7 & 8. This Court finds, these are all Issues involving declaration part involving the suit is concerned, while other Issues are confined to the suit for partition. While answering of the Issues, the trial court particularly Issue Nos.3, 6 & 8, as appears, the same have been answered against the defendant. So far as the Issue involving partition is concerned, has been answered in favour of the plaintiff. 7. Now coming to scan the challenge involving R.F.A. No.231/2016, this Court in entire scan of the pleading involving in the Appeal nowhere finds, the Appeal is confined to the decree in respect of the partition only rather it has a clear indication of challenge to the judgment and decree involved therein. 7. Now coming to scan the challenge involving R.F.A. No.231/2016, this Court in entire scan of the pleading involving in the Appeal nowhere finds, the Appeal is confined to the decree in respect of the partition only rather it has a clear indication of challenge to the judgment and decree involved therein. During course of argument, Sri Mishra, learned counsel for the petitioner strenuously urged that the R.F.A. No.231/2016 being confined to partition aspect, the party in appeal was not required to pay ad valorem court-fee. Perused the impugned order. This Court finds, the lower appellate court while asking the appellant to pay ad valorem court-fee has not given any finding on this claim of the petitioner, appellant. The lower appellate court while considering the court-fee aspect has to see the judgment and decree involved and not the entire claim involving the suit. 8. Under the circumstance and taking into consideration the submission of the learned counsel for the petitioner that his appeal confined to partition part is concerned, this Court finds, the lower appellate court is required to consider this aspect once again taking into consideration the appellant’s confining the appeal to the particular extent and taking into consideration the partition aspect only. Under the circumstance, while interfering with the impugned order, this Court remands the matter to the lower appellate court for re-consideration of the aspect of payment of ad valorem court-fee. Decision as per the direction of this Court be taken within a period of one month from the date of appearance of the parties but however with the involvement of the State, as ultimately payment of ad valorem court-fee is a matter between the parties in appeal and the State.