^y\e ^ HIGH COURT OF CHHATTiSGARH, BILASPUR W.P.tCl No.4943/2007 Lokmanya Sahakari Griha Nirmaa Saasttsa, fhrough its Director, Kaxnlakar Kusre, having its office at Gole Chowk, Rohinipuram, RaipuT(CG) ..DefeadaatNo.l Versus KESPOMDENT 1 Smt. Kavita Devani, w/o Late Prakash Devani, Aged about 45 years, R/o C/o Gopi Chand Dayaram Guru Daya, 8 Viadh Vihar Colony, Nandi Gate, Lashkar, Gwalior(MP) .Plaiutiff 2. P.V. Agmliotd, House No. V-26, Lokmaaya Sahakari. Griha Nirman Saastha, Rohiuipuram, Raipur ,,DefendantNo.2. WRIT PETITION UBIDER AR33CLE 227 OF THB COBiSTITUTION OP INDIA Appearaace: Shri P.R. Pataakar, Counsel for the petitioner. Shri G.D. Wasvani, Counsel for the respondeiits. ORAL ORDBR (14.2.2008) SUNIl, KUMAR SINHA, J. Heard. The petitioner, who is defendaut no, l ia the trial Court, has chaUenged fhe vaUdity of orders dated 03.11.2006 and 23.6.2007 passed by flie said court in Civil Suit No.38A/2006. By the first order, the trial Court has grauted permission to fhe plaiutiff to prosecute her suit wiftiout payinent of requisite court fees on the basis of reinission given under notification dated 01.04.1983 issued u/s 35 ofthe Court Fees Act. Siace it was an ex-parte order, fhe petitioner/defendant no.l after causing his appearaace filed an appUcation u/s 151 offhe Code of Civfl Procedure indicating fhat fhe plaiatiff is possessing ^p W.P.fC). No.4943 of2007 inaay properties and suppressiug the details of aB those properties she has clamied retnission on fhe Involous grouiids, fherefore, fhe order of remission be wifhdrawn aad she may be directed to deposit fhe requisite court fees. It is on this application, fhe second order dated 23.6.2007 has been passed. Referriiig to the decisions rendered by fhe M.P. High Court iu tlie matter of KJO. JWzcun -Vs- Unlon. Banfe offndia tmO. otftcrs, 1991 JLJ 381 JUaad Kemvt Shmma -vs-jea.P. Biah Court, JahaltM.r, AXR 1989 M.P. Pfi.247, leamed counsel for fhe petitioner argues ftiat it" an objection was raised by he defendant that fhe plaintiff was iiot entitled to get the reiaission u/s 35 of fhe Court Fees Act, it should have been decided by the trial Court aad fhe tnal Court should not have out-righfly rejected the contention of tbe defendaut. On ftie ofher hand, learaed couasel for respondent no. 1/plamtiff argues fhat fhe matter of payment of court tees is a niatter between fhe plaiatiB' arid the State and the detendant has no say on it, fherefore, fhe order passed by fhe trial Court should not be set aside. I have heard learaed counsel for fhe parties at length and have also perused the records offhe writ petition. Adinittedly, tbe first order was an ex-parte order in which the defendant was not heard and when the defendant caused bis appearaace he had raised the objection by filmg aa appUcation u/s 151 of C.P.C. When the defendant has contended fhat the plamtitf was not entifled to get remission under the Court Fees Act, it was iacuinbent on fhe Court to decide this point but the said poiat has not been decided aad ttie trial Court rejected fhe appUcation sayiug that objections iuay be taken ua. the written stateinent in this regard. It is an admitted position that written statement was not fUed at the tiine of passiag of both fhe orders but subsequently it has been filed. Counsel appesjiag fbr the petitiQner is not ia a positiou to state as to whefher fhis point has been raised by the defendant iu written statement or not. Admittedly, if siich controversy is raised by fhe defendant after causiag his appearance, ia fhe opinion of ttus Coiul, proper course would be to raise fhese points in tus written ^SSS^e..^ '3).~"<i!SA ^s^ "''p j %. "'-,-.^'A 'iy^y W.P.(CT. No.4943 of2007 stateinent aud then the Coiut has to decide tfaat poiat after giviug proper opportiuuty of hearing to both the pardes. In the result, the petition is disposed ofwith a direction to the trial Court to examine the written stateinent and if fhe ground is taken therein to fi-Eune an issue on the point. If the defendant has not raised this ground in fhe written statement, au opportunity shall be given to the defendant to raise ftie same aad if such a ground is raised then after frammg an issue on fhe questtoa of payment of court fee, fhe same shaU be decided by fhe trial Court in accordance wifh. law. With the above observations, this writ petition staads fiiiaUy disposed of. Sd.'- Sunil Kumar Sinha Judge /K.OO/ ^-