In this case the legal position seems to be quite omnificent that under Notification it is a case of exemption and under Order XXXIII of the Code it is a case of deferment of Court-fees on the success of the plaintiff. In this case since the exemption was granted under Notification, therefore, directly the case of Vandana Bhargava (supra), which is on Order XXXIII is not applicable on the facts of this case.
But it would be logical to hold that a case of exemption granted under section 35 of the Court Fees Act is also a case of personal right because under the notification exemption is granted to the persons and on his death the exemption would come to an end automatically. Therefore, the Court below has rightly directed the applicants that if their case is covered by the Notification and they are entitled to seek exemption they may file proper application and satisfy the Court. Thus, looking to the language of Notification it would not be prudent to hold that the exemption would continue even after the death of a person in whose favour it was granted because after the death of the plaintiff, the legal representatives have to prove that they are entitled to prosecute the suit and right to sue survive in their favour and they are also entitled to get the relief. It is logical because thereafter they will also get the benefit and fruits of the decree. The purpose of exemption is to protect the weaker section of the society from exploitation as per the constitutional requirement under Article 39A of the Constitution of India. Exemption from payment of Court-fees to the persons belonging to the weaker society is a constitutional mandate to provide free legal aid on the basis of equal opportunity for securing justice which should not be denied to the citizens by reason of economic disability. Though Shri Kochatta very vehemently submitted that the L.Rs. will have a right to continue with the suit irrespective of their means but since the aforesaid Notification is applicable to persons those who are falling within the specified category, therefore, after the death, the legal representatives would not be entitled to get the benefit of the same, unless they file application and prove that they are also entitled to get the benefit of the notification and also entitled for exemption from payment of Court-fees.
Once exemption is granted under Notification, may not be withdrawn or available for reconsideration to the parties during the pendency of the suit, even if minor attains majority, unskilled labourer become skilled, labourer or landless labour gets land, in that case the position of the date of suit may be material but this may not apply in a case of death, as has been argued by Shri R.C. Kochatta. It is not the intention of the Notification that benefit should be conferred on the L.Rs. even after the death of the deceased plaintiff; and also in the case when they are in a position to pay Court-fees. Thus this direction will safeguard the interest of the L.Rs. of the plaintiff that if they are also entitled to take the benefit of the Notification, they can also file application and satisfy the Court that they are also entitled for exemption, as has been directed by the trial Court in this case. Thus, the said direction will protect the interest of the L.Rs. as per the intention and spirit of the Notification.
Citation: 2003(1)MPLJ290
IN THE HIGH COURT OF MADHYA PRADESH (INDORE BENCH)
Civil Revision No. 121 of 2000
Decided On: 04.10.2002
Mangilal s/o Mohanlal Porwal Vs. Rameshchandra s/o
Balmukand Porwal and others
Balmukand Porwal and others
Hon'ble Judges/Coram:
A.K. Gohil, J.
A.K. Gohil, J.
This Civil Revision under section 115 of the Code of Civil Procedure is directed against the order dated 15-1-2000 passed by the District Judge, Ratlam in C.O.S. No.30-A/99 whereby decided preliminary issue against them regarding payment of Court-fees by legal representatives of the exempted deceased plaintiff under section 35 of the Court Fees Act.
The facts giving rise to the revision petition are that the original plaintiff Smt. Lilabai filed a suit for partition without payment of Court-fees. She was a lady and was not having income more than Rs. 6,000.00 per year, therefore, she was exempted from payment of Court-fees vide order dated 23-8-1995. She died during the pendency of the suit. On her death her L.Rs. were substituted and on the objection of the defendants the trial Court framed an issue whether the legal representatives of the deceased plaintiff are also entitled for exemption as per the Notification issued under section 35 of the Court Fees Act. The learned trial Court after hearing parties relying on the case of Vandana Bhargava vs. Kapil Bhargava, reported in MANU/MP/0784/1996 : 1997(1) J.LJ. 370, held that the substituted L.Rs. are required to pay Court-fees and it was further directed that if they are not in a position to pay the Court-fees, then they may also claim exemption under section 35 of the Court Fees Act and may take necessary steps for this purpose, against which the applicants/plaintiffs have filed this civil revision.
I have heard learned counsel for parties and perused the record.
The submission of Shri R.C. Kochatta, learned counsel for applicants is that as per the Notification issued under section 35 of the Court Fees Act, the case of remission of Court-fees is of an exemption and the exemption from the Court-fees granted does not at all provide for withdrawal of exemption once it is granted and in absence of any provision entitling such withdrawal upon death, or failure of the suit, the Court-fees cannot be demanded from his L.Rs. It being a fiscal statute the provisions are to be strictly construed and even in case of doubt it has to be resolved in favour of subject. His further submission was that once an exemption is granted, the matter is closed once for all. The liability to pay Court-fees has to be judged with reference on the date when the suit is filed after presentation of the plaint and the preceding date for claiming exemption is the income immediately preceding the date of filing plaint.
In reply Shri Purohit, learned counsel for Respondents/defendants supported the impugned order passed by the trial Court and submitted that the Court has already granted liberty to the applicants/plaintiffs to apply for exemption afresh, it they are entitled to avail it after satisfying the Court that their income is below Rs. 6,000-00 per year.
The Division Bench of this High Court in the case of Ramji Sharma vs. High Court of M.P., Jabalpur and others, reported in MANU/MP/0053/1989 : AIR 1989 MP 247, was of the view that:-
The procedure contemplated under Order 33, Civil Procedure Code provides merely for deferment of payment of Court-fees and not for total exemption and that procedure cannot, therefore, be followed when a claim is made for total exemption pursuant to the Government Notification. The term 'indigent person' is defined in the Explanations appended to Rule 1 of Order 33, who, evidently, is not a person of the same category as is contemplated under the Government Notification. Holding an enquiry into 'indigence' of a person and to deal with his application for deferment of court-fees in accordance with the provisions of Order 33 is certainly likely to create the serious hardship to the persons of such categories in respect of which total exemption is contemplated under Government Notification. The very purpose of exemption, as noted in Laxmi Narayan, MANU/MP/0023/1988 : AIR 1988 MP 142 (supra), that of encouraging the weaker section of the society to ward off exploitation, will be lost if that is done. In respect of small claims of the small men of the weaker section of society, if not instant, quickest possible decision on merit of the claim would only fulfil the constitutional requirement of Article 39A. But, it is common knowledge that indigence proceedings, as a primary proceeding, protract over number of years by revisions counter-revisions and so on, after the first stage of 'enquiry' leisurely made at the level of the trial Court.
We are of the opinion that it may be well within the competence of the trial Court, in the absence of Rule competently made by a competent authority regulating the procedure of such court in respect of any claim made for exemption of court-fees under section 35 of the Act, to follow such procedure in dealing and disposing of the claim as may be conducive to expeditious conclusion of the trial. Indeed, no separate proceedings is at all contemplated for disposal of the claim for exemption. It will only be necessary for the claimant/plaintiff to prove the requirements of the Notification to the satisfaction of the trial Court. He has only to prove that his income from all sources does not exceed Rs. 6,000/- per annum and that he is a person who belonged to any of the categories mentioned in the Notification. Let it be noted in this connection that even under section 149, Civil Procedure Code, a Civil Court has the power to entertain any suit without payment of court-fees and to fix a date by which the plaintiff has to pay the same. It is contemplated therein that when such an order as to payment of court-fees is complied by the parties concerned, the suit shall be deemed instituted on the date when the plaint was filed. This position also follows from what appears in Order 7, Rule 11(c), Civil Procedure Code. By following that procedure, the plaintiff claiming exemption, on his failure to prove the requirements of the Notification, may be asked to pay the requisite court-fees by a specified date and on non-compliance of that order, the plaint may be rejected.
It may be that when exemption claimed is allowed, it may adversely affect State Revenue and on that ground, it would be well within the jurisdiction of the trial Court to notice the Collector and hear him if he opposes the claim for exemption. This requirement would follow from the principles of natural justice as also indeed from section 35 of the Act itself because it would be competent for the State to oppose claim made by any particular litigant in any particular case on the ground that he did not qualify for the exemption granted under the Notification. When exemption is granted, the State/Collector would cease to have any further interest in the suit or its subject-matter. On the other hand, as held in Mahphooj Hussain, MANU/MP/0073/1987 : AIR 1987 MP 286, Court has to guard the Revenue's interest in indigence proceedings as per Rules 10 and 14 of Order 33, Civil Procedure Code. We have no doubt, therefore, that insofar those provisions are concerned, there is no scope for the application thereof in respect of a claim for exemption made under the Notification. In Laxmi Narayan, MANU/MP/0023/1988 : AIR 1988 MP 142 (supra), trial Court's acceptance of plaintiffs evidence and determination on that basis fulfilment by him of the requirements of the Notification was held valid, but it has to be made clear that if Collector chooses to adduce, in any particular case, any contra-evidence, that has also to be assessed in rendering final decision on the claim made for exemption.
From the aforesaid decision rendered by the Division Bench of this High Court, it is clear that there is difference between the total exemption of Court-fees contemplated under section 35 of the Court Fees Act and the procedure prescribed under Order XXXIII of the Code of Civil Procedure which is merely for deferment of payment of Court-fees and not for total exemption. It has been clearly held by the Division Bench that in a case of total exemption the procedure prescribed under Order XXXIII of the Code cannot be applied and on the basis of the aforesaid discussion the memorandum dated 8-10-1984 issued by the High Court to follow the procedure laid down in Order XXXIII of the Code as the guidelines provided therein was quashed. It is true that the case of Vandana Bhargava (supra) is based on Order XXXIII Rule 1 of the Code in which it has been held that right of indigent person to sue without payment of Court-fees is a personal right and on his death does not survive to his L.Rs. Therefore, the question before this Court in this civil revision is that whether the right of exemption is granted under Notification issued under section 35 of the Court Fees Act to the plaintiff is a personal right or the L.Rs. of the plaintiff are also entitled to get the benefit of the same. It has also to be considered whether as per the Notification issued under section 35 of the Court Fees Act exemption is granted to the suit or to the person. If it is granted to the person then certainly after the death of that person the exemption so granted would automatically come to an end. If the exemption is granted to the suit, then certainly to some extent it can be argued that it will survive and the L.Rs. would also be entitled to get the benefit of the same, irrespective of the fact whether they are also entitled to get the benefit of the same or not.
Section 35 of the Court Fees Act, 1870 reads as under:-
35. Power to reduce or remit fees.- The appropriate Government may, from time to time by notification in the Official Gazette, reduce or remit, in the whole or in any part of the territories under its administration all or any of the fees mentioned in the first and second schedules to this Act annexed, and may in like manner cancel or vary such order.
Notification dated 1-4-1983 with Explanation reads as under:-
Notification dated 1-4-1983,- Notification No. F. 9. 83-b-XXI, dated 1-4-1983 - Published in M.P. Rajpatra (Asadharan) dated 1-4-1983, p. 1068.-
In exercise of the powers conferred by section 35 of the Court-fees Act, 1870 (No. 7 of 1870), the State Government hereby remits in the whole of the State of Madhya Pradesh, the Court-fees mentioned in Articles 1A and 2 of the first Schedule and Articles 5, 17 and 21 of the second schedule to the said Act payable on plaint by the following categories of the persons whose annual income immediately preceding the date of presentation of plaint from all sources does not exceed rupees six thousand, namely-Explanation.- For the purposes of this notification:-
(i) member of Scheduled Tribes;
(ii) member of Scheduled Castes;
(iii) minors;
(iv) women;
(v) artisan;
(vi) unskilled labourer;
(vii) landless labourer;
(viii) person belonging to the weaker section of the society.
(1) 'Member of Scheduled Castes' means a member of any caste, race or tribe or part of or group within caste, race or tribe specified as such with respect to the State of Madhya Pradesh under Article 341 of the Constitution of India.
(2) 'Member' of Scheduled Tribes' means a member of any tribal community or part of or group within a tribe or tribal community specified as such with respect to the State of Madhya Pradesh under Article 342 of the Constitution of India.
From the bare reading of the aforesaid provisions of section 35 and Notification it appears that by the Notification the State Government has remitted the Court-fees mentioned in Articles 1-A and 2 of the first Schedule and Articles 5, 17 and 21 of the second Schedule to the said Act payable on plaint by the following categories of the persons whose annual income immediately preceding the date of presentation of plaint from all sources does not exceed rupees six thousand. Therefore, from the aforesaid Notification it is clear that it prescribes two conditions, namely (i) that the annual income of the persons immediately preceding the date of presentation of plaint from all sources should not exceed rupees six thousand; and (ii) this Notification is applicable on the persons mentioned in the notification. Therefore, it is also clear from this Notification that it applies only to the persons those who are belonging to the special categories which are mentioned in the Notification and not to all.
It is true that in the Notification there is no power to withdraw the exemption but under section 35 of the Court Fees Act, the appropriate Government may cancel or vary such orders. But this argument of Shri Kochatta, learned counsel for applicants appears to be forceful that once exemption granted cannot be withdrawn. But he has not submitted that what would happen in a case when a person in whose favour exemption is granted died, normally that would mean that the exemption would come to an end on the death of person in whose favour it was granted. It is true that the dictum of Vandana Bhargava's case (supra), is on Order XXXIII Rule and may not be applicable on the cases which are falling within the category of Notification issued under section 35 of the Court Fees Act as has been held by the Division Bench in the case of Ramji Sharma (supra).
In this case the legal position seems to be quite omnificent that under Notification it is a case of exemption and under Order XXXIII of the Code it is a case of deferment of Court-fees on the success of the plaintiff. In this case since the exemption was granted under Notification, therefore, directly the case of Vandana Bhargava (supra), which is on Order XXXIII is not applicable on the facts of this case.
But it would be logical to hold that a case of exemption granted under section 35 of the Court Fees Act is also a case of personal right because under the notification exemption is granted to the persons and on his death the exemption would come to an end automatically. Therefore, the Court below has rightly directed the applicants that if their case is covered by the Notification and they are entitled to seek exemption they may file proper application and satisfy the Court. Thus, looking to the language of Notification it would not be prudent to hold that the exemption would continue even after the death of a person in whose favour it was granted because after the death of the plaintiff, the legal representatives have to prove that they are entitled to prosecute the suit and right to sue survive in their favour and they are also entitled to get the relief. It is logical because thereafter they will also get the benefit and fruits of the decree. The purpose of exemption is to protect the weaker section of the society from exploitation as per the constitutional requirement under Article 39A of the Constitution of India. Exemption from payment of Court-fees to the persons belonging to the weaker society is a constitutional mandate to provide free legal aid on the basis of equal opportunity for securing justice which should not be denied to the citizens by reason of economic disability. Though Shri Kochatta very vehemently submitted that the L.Rs. will have a right to continue with the suit irrespective of their means but since the aforesaid Notification is applicable to persons those who are falling within the specified category, therefore, after the death, the legal representatives would not be entitled to get the benefit of the same, unless they file application and prove that they are also entitled to get the benefit of the notification and also entitled for exemption from payment of Court-fees.
Once exemption is granted under Notification, may not be withdrawn or available for reconsideration to the parties during the pendency of the suit, even if minor attains majority, unskilled labourer become skilled, labourer or landless labour gets land, in that case the position of the date of suit may be material but this may not apply in a case of death, as has been argued by Shri R.C. Kochatta. It is not the intention of the Notification that benefit should be conferred on the L.Rs. even after the death of the deceased plaintiff; and also in the case when they are in a position to pay Court-fees. Thus this direction will safeguard the interest of the L.Rs. of the plaintiff that if they are also entitled to take the benefit of the Notification, they can also file application and satisfy the Court that they are also entitled for exemption, as has been directed by the trial Court in this case. Thus, the said direction will protect the interest of the L.Rs. as per the intention and spirit of the Notification.
Thus, from the foregoing discussions, it is clear that the trial Court has wrongly applied the dictum of Vandana Bhargava's (supra) but has rightly held that either they should pay Court-fees or if they are entitled for exemption under section 35 of the Court Fees Act, they should file appropriate application and I do not think that any case is made out for interference by this Court in this civil revision.
Accordingly this revision has no merits and is hereby dismissed with no order as to costs. However, liberty is granted to the applicants/plaintiffs either they should pay the Court-fees within a period of 30 days from today or they should apply for seeking exemption under section 35 of the Court Fees Act if they are so entitled and if any such application is filed that would be considered by the trial Court in accordance with law.
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