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Gopaldas Becharbhai and anr. Vs. Chandra Prabhaji - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1985)2GLR1425
AppellantGopaldas Becharbhai and anr.
RespondentChandra Prabhaji
Excerpt:
- .....of this revision application the appellants had shown their willingness to pay the court. fees if time is granted. it is not necessary to remand the matter for inquiry into. the indigence of the appellants. however, ends of justice would be met if the appellants are granted reasonable time to pay the court fees in the lower appellate court. in the result the revision application succeeds and the judgment and order of the lower appellate court below ex. 21 is quashed and set aside whereby the application was rejected and the appeal was dismissed for non payment of deficit court fees. civil regular appeal no. 136/81 of the district court junagadh, will stand restored to file and the appellants are granted time to pay the deficit court fees upto 30th september 1985. rule is made.....
Judgment:

R.A. Mehta, J.

1. In this Revision Application by the original defendants the only question that really survives is regarding granting time to pay court fees on the memo of appeal in the District Court.

2. The original plaintiff had filed a suit to recover possession of the suit premises on the basis of title and had paid court fees of Rs. 30/-. The suit came to be decreed by the trial court. The defendants in their appeal also paid the same court fees as had been paid by the plaintiff in the trial; court. However, it appears that the Inspecting Officer (Court Fees) had recorded a provisional finding that the court fees on the memo of appeal should have been Rs. 1450/ -and therefore there was deficit fees of Rs. 1420/-. It appears that this was done on the basis of the market value of the suit premises. Ultimately after the inquiry made on the reference the valuation regarding court fees was confirmed. The suit property was found to be of value of Rs. 20.000/- on which the court fee payable would be Rs. 1450/-. It appears that the respondent plaintiff has paid the deficit court fee of Rs. 1420/- on the plaint as per purshis at ex. 20 given in the appellate court on 22-2-85. The defendants-appellants were also directed to pay the deficit court fees, on the memo of appeal by order dt. 6th February 1985. On 18th February 1985 the appellants-defendants made an application to grant them further time to pay the court fees or to consider whether to seek permission to file the appeal as indigent persons. That application was rejected on the same day and the matter was posted for hearing on 22-2-85. On that day another application was submitted for permitting the appellants to file the appeal in pauperism as indigent persons or in the alternative to grant time for payment of court fees. Before) the lower appellate court a question was raised whether during the pendency of the appeal such an application could be made.

3. There Is no doubt that such an application could be made even after the appeal is filed if the question of court fees arises subsequently and substantial court fee is required to be paid which is beyond, the means and ability of the appellants to pay. If a party does not have the means to pay the court fees he is not to be denied justice on that ground! and when he filed tile appeal he had paid the court fees on the same basis as was paid by the plaintiff in the 'suit, which was a small amount of Rs. 30/- only, since that was within his capacity. Therefore that amount was paid. However, whenever the question was of paying of court fee of Rs. 1420/- if it is beyond the means of the appellant, the appellant is certainly entitled to make application to continue the appeal as indigent person.

4. The lower appellate court also came to the conclusion that appellants were not indigent persons. However, there appears to be no inquiry made. The appellants were not examined on oath and they were not given any opportunity to show that they were indigent persons and the court observed that the appellants were given sufficient time to pay the court fees and for one reason or the other they had tried to avoid payment of deficit court fees. on false grounds. This finding does not appear to be supported by any evidence or material on record. It appears that the appellants are persons of humble means and even if they may not be indigent persons, they would require a lot of time to make arrangements for payment of substantial court fees of Rs. 1420/-. To such persons to deny even time to pay court fees is to deny them justice. If a regular inquiry into the pauperism was made, perhaps the case for indigent persons would have been made.

5. However, in view of the fact that at the time of admission of this Revision Application the appellants had shown their willingness to pay the court. fees if time is granted. It is not necessary to remand the matter for inquiry into. the indigence of the appellants. However, ends of justice would be met if the appellants are granted reasonable time to pay the court fees in the lower appellate court. In the result the Revision Application succeeds and the judgment and order of the lower appellate court below ex. 21 is quashed and set aside whereby the application was rejected and the appeal was dismissed for non payment of deficit court fees. Civil Regular Appeal No. 136/81 of the District Court Junagadh, will stand restored to file and the appellants are granted time to pay the deficit court fees upto 30th September 1985. Rule is made absolute accordingly with no order as to costs.


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