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Orissa High Court · body

2018 DIGILAW 185 (ORI)

Bhagyadhar Das v. State of Odisha

2018-02-12

BISWANATH RATH

body2018
ORDER 12.02.2018. Heard Shri Nilakantha Jujharsingh, learned Counsel appearing for the petitioner and Shri K.K. Mishra, learned Counsel appearing for the opposite parties. 2. This matter involves rejection of an application under Section 149 of the Code of Civil Procedure, thereby rejecting the request of the plaintiff-petitioner to allow him some installments in making payment of the Court fees for the plaint purpose. 3. There is no dispute by the plaintiff-petitioner in the matter of payment of Court fees, but for the heavy amount involved therein, the plaintiff-petitioner seeks relief of installments in the matter of payment of Court fees. 4. Under the above circumstance and taking this Court to the observations made by the trial Court, Shri Jujharsingh, learned counsel appearing for the petitioner making reference to the power of the Court under Section 149 of C.P.C., contended that the Court has ample power to grant instalments and/or directs the parties to have a part payment in the proceeding of the suit. 5. Shri K.K. Mishra, learned Counsel appearing for the opposite parties-State referring to the provisions under Section 149 C.P.C., submitted that unless the half of the Court fees is paid, the suit may not be allowed to proceed or at least the Court fees should be cleared by the time of settling the issues. 6. Considering the rival contentions of the parties, this Court finds, the provision at Section 149 of Cr.P.C. reads as follows :- “149. Power to make up deficiency of Court fees .- Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to Court-fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part, as the case may be, of such Court fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance.” 7. Reading of the above provision abundantly makes it clear that a suit can even be filed with payment of part Court-fees and further for the clear provision empowering the Court taking up suit proceedings to have the power of direction to the plaintiff to make part payment of the Court-fees, this Court finds, there is no proper consideration of the issue involved by the trial Court. This Court recording the submission of Shri Jujharsingh, learned Counsel appearing for the petitioner that the plaintiff-petitioner is ready to clear the entire Court-fees before settlement of the Issues and further the provisions contained in Section 149 of C.P.C., holds the impugned order since passed in non-consideration of the provisions contained in Section 149 C.P.C. As a consequence, interfering with the impugned order at Annexure-3 and while allowing the application under Section 149 of C.P.C. at the instance of the plaintiff-petitioner, this Court permits the plaintiff-petitioner to pay 50 (fifty) percent of the Court-fees within a period of one week hence and the balance Court-fees will be paid before the settlement of Issues. 8. The Civil Miscellaneous Petition stands disposed with the aforesaid observation and direction. CMP disposed of.