,^ ''° -..• y^<^ ^w^^^--' -^.'C'W^' ^>s'^v •?°\<^ <s' ^bi- ^ ^ '-i ^'''' - aENGK IN THE HON'BLE HIGH COURT OF CHHATHSGARH AT BILASPUR W.P. (227)N0. pU\ / 2010 PETITIONERS / .:1. DEFENDANT 1 8s 2 /l. Nilambar Singh Thakur, S/o Kamlochan Singh Thakur, 48 years, Smt.Basanti Bai, W/o Nilambar Singh Thakur, 45 years, Both R/o DharampuraNo.3, Jagdalpur, Distt. Bastar-(C.G.) VERSUS Smt.Mainamati, Wd/o Krishnakantpal Mistri, 61 years, R/o Rabindranath Tagore Ward, Near Commissioner Office, In front of Pani Tankie, Jagdalpur, Distt. Bastar-(C.G.) DEFENDANT N0.3 2. State of Chhattisgarh, Through - Collector, Bastar, Jagdalpur-(C.G.) WRIT PETITION U/A 227 OF THE CONSTITUTION OF INDIA RESPONDENTS -fl. PLAINTIFF fflGH COURT OF OEIHATTISGARH AT BILASPUR Single Bench: Hon'ble Shri Justice Prashant Kumar Mishra Writ Petition (227) No. 1241/2010 NUambar Singh Thakur and another Versus Smt. Mainamati and another ORDER Postfor 3>o-09^ Sd//- Prashant Kumar Mishra Judge fflGH COURT OF CHHATTISGARH AT BILASPUR S.B: Hon'ble Shri Prashant Kumar Mishra Writ Petition (227) No. 1241/2010 PETITIONERS RESPONDENTS : Nilambar Singh Thakur and another Versus Smt. Mainamati and another Appearance: Shri Prafull Bharat, counsel for the petitioners. Shri Vinod Tekam, Panel Lawyer for the State/respondent No.2. WRIT PETITION UNDER ARTICLE 227 OF THE CONSTmjTION OF INDIA ORDER 3&.09.2010) The petitioner is the defendant in the suit. He has filed the present petition under article 227 of the Constitution of India to challenge the orders passed by the trial court on 20/10/2009 and 2/02/2010 contained in Annexure P-1. By the first order the learned trial court has allowed plaintiffs prayer for exempfion from payment of court fees in terms of the notification issued by the State Govemment in exercise of powers of section 35 of the Court-fees Act. By th? second order the learned trial court has rejected petitioner's prayer for review ofthe first order. (2) From the copy of the plaint it would appear that the plaintiff has filed a suit for declaration of title and possession. It has been averred in the plaint that the petitioner is an unemployed, aged lady .f belonging to below poverty line (BPL) category and has no income for payment ofcourt fees. In para 20 ofthe plaint she has stated that her income from all sources is less than 10,000/-, therefore by virtue ofthe State Govenunents notification dated 1/04/1983 issued under section 35 of Court-fees Act, she is entitled to be exempted from payment ofcourt fees. (3) The ti-ial court by its order dated 20/10/2009 allowed the application after referring to the xerox copy of certificate of income issued by Tahsildar, Jagdalpur in favour of plaintiff. In the said certificate, her yearly income is mentioned at Rs.8000/- per year. The trial court has observed that as per the State Govemments notification a plaintiff who has an income less than 25,000/'- per year shail be entitled to exemption from payment of court fee. Thus, on these grounds the prayer for exemption in payment of court fee was allowed. (4) The petitioner subsequently appeared in the suit and moved an application for recalling the order dated 20/10/2009 by submittini that the said order ivas passed without issuing notice to him and fhe same deserves to be set aside/recalled. The trial court has also rejected the prayer for recalling its earlier order after observing that the earlier order does not suffer from any illegality and no case for review is made out in exercise ofpowers under section 151 ofCPC. (5) Counsel for the petitioner has argued that order for exemption from payment of court fee cannot be passed without giving opportunity ofhearing to the petitioner, He has placed reliance on the judgment of M.P. High Court in the matter of R,N. Rai Vs. Shesh Narayan Rai and others, 1990 M.P.L.J. 377 (Single Bench) and the judgment in the matter of Ramji Sharma Vs. High Court of M.P., Jabalpur and others reported in AIR 1989 M.P. 247. [6) Having heard learned counsel for the petitioner, fliis court is of the opinion that since the plaintiffhas averred that she belongs to and is a member of belovv poverty line family and that her yearly income is 8000/- as certified by the Tahsildar, Jagdalpur, ifae prayer for exemption has rightly been allowed. The petitioner has not placed any material in the record of this writ petition to controvert or demolish the income certificate issued by Tahsildar, Jagdalpur in favour ofplaintiff. Troe it is that in thejudgment ofRamji Sharma Vs. High Court of M.P., Jabalpur and others (supra) the M.P. High Court has held that the defendant should be heard before passing the orders on exemption from payment ofcourt fee, but it is also tme that in tfae absence of any material the hearing need not be granted for observing formality. (7) It is n.ot the case ofthe petitioner and nothing has been placed in the record ofthis writ petition that the plaintiffdoes not belong to a BPL family and that she has means and resources to pay court fee. If such evidence would have been placed on record, prayer for remand /oftbe matter would have been considered. c^f tt- (8) In the matter of Sri Rathnavarmaraja Vs. Smt. Vimla, AIR 1961 SC 1299, the Hoa'ble Supreme Court has observed thus:- "The anxiety of the Legislature to collect court-fee due from the litigant is manifest from the detailed provisions made in Chapter III of the Act, but those provisions do not ami the defendant with a weapon of technicality to obstruct the progress ofthe suit by approaching the High Court in revision against an order determining the court fee-payable. In our view, the High Court grievously erred in entertaining revision applications on questions of court-fee at the instance of the defendant, when no question ofjurisdiction was involved." (9) It cannot be forgotten that the present is a petition under article 227 of the Constitution of India, wherein this court has limited jurisdictioii. In the matter of Celina CoeBio Pereira (Ms) and others Vs. Ulhas Mahabal^hwar Kholkar and others reported in (2010) 1 SCC 217, the Hon'ble Supreme Court has laid down principles for exercise ofpower under article 227 ofthe Constitution oflndia. (10) In view ofthe judgment ofthe Supreme Court in the matter of Sri Rathnavarmaraja Vs. Smt. Vimla (supra) and Celina CoeBio Pereira (Ms) and others Vs. UUias Mahabaleshwar Kholkar and others (supra) this court is not inclined to entertain this writ petition filed under article 227 ofthe Constitution oflndia which fails and is hereby dismissed. Sd//- Prashant Kumar Mishra Judge (.1 III .8, : ,^1,1,—-