Pramod Yadav vs Mangal Singh Kewat
2023 Latest Caselaw 14028 MP

                                                             1
                           IN      THE      HIGH COURT OF MADHYA PRADESH
                                                 AT JABALPUR
                                                      BEFORE
                                        HON'BLE SHRI JUSTICE SANJAY DWIVEDI
                                                ON THE 25 th OF AUGUST, 2023
                                              MISC. PETITION No. 4744 of 2023

                          BETWEEN:-
                          PRAMOD YADAV S/O KANCHHEDI YADAV, AGED
                          ABOUT 45 YEARS, MAHENDRA WARD KARELI, TAHSIL
                          KARELI,   DISTRICT   NARSINGHPUR   (MADHYA
                          PRADESH)

                                                                                           .....PETITIONER
                          (BY SHRI BRIJENDRA SWAROOP SAHU - ADVOCATE)

                          AND
                          1. MANGAL SINGH KEWAT S/O LOTAN SINGH YADAV,
                          AGED ABOUT 38 YEARS, R/O VILLAGE PITHAHARA
                          (PATHROULA),  TAHSIL GADARWARA,     DISTRICT
                          NARSINGHPUR (MADHYA PRADESH)

                          2. STATE OF M.P. THROUGH COLLECTOR, DISTRICT
                          NARSINGHPUR (MP)

                                                                                        .....RESPONDENTS
                          (NONE)

                                This petition coming on for admission this day, th e court passed the

                          following:
                                                               ORDER

By the instant petition filed under Article 227 of the Constitution of India, the petitioner is raising grievance in respect of the order passed by the appellate Court under which in an appeal preferred against the judgment and decree, the appellant (respondent No.1 herein) has filed three applications along with the memo of appeal. The first one was under Section 5 of the Limitation Act, 1963 second one was under Order 41 Rule 5 of the Code of Civil Procedure, 1908 Signature Not Verified Signed by: ANIL CHOUDHARY Signing time: 8/26/2023 12:25:13 PM

and the third one was under Section 35 of the Court Fees Act, 1870. The Court has considered two applications vis. Section 5 of the Limitation Act and Order 41 Rule 5 of the CPC, but the application filed under Section 35 of the Court Fees Act has not been considered and the case is fixed for arguments on the said application.

2. Learned counsel for the petitioner submits that the appellate Court should have decided the application of Section 35 of the Court Fees Act first and then only appeal can be entertained. If the application of Section 35 is rejected then the very purpose for filing the appeal would go and the appeal will not be entertained. He submits that the application of Section 35 of the Court Fees Act

should be decided first then only other applications should have been decided.

3. However, I do not find any substance in the submission made by the counsel for the petitioner for the reason that there was no such provision under which the application of Section 35 of the Court Fees Act is required to be decided first. If the Court comes to the conclusion that the appellant is not entitled to get any relief as per Section 35 of the Court Fees Act and no relaxation can be given to him in payment of court fees, the application could have been rejected, but deciding the application of Section 5 of Limitation Act and Order 41 Rule 5 of CPC prior in time, is not any illegality. Therefore, interference in the order impugned is not warranted.

4. Although, this petition is disposed of directing the trial Court to decide the application of Section 35 of the Court Fees Act without wasting any further time because adjourning the case for arguments on the said application under the circumstances when the judgment and decree has already been stayed, does not seem to be proper. If appropriate court fees is not paid then the Court has to see whether the appeal can be entertained or not. Therefore, it is directed that Signature Not Verified Signed by: ANIL CHOUDHARY Signing time: 8/26/2023 12:25:13 PM

the application of Section 35 of the Court Fees Act be also decided expeditiously by the trial Court without giving any further adjournment to the appellant.

5. With the aforesaid, this petition is disposed of.

(SANJAY DWIVEDI) JUDGE ac/-

Signature Not Verified Signed by: ANIL CHOUDHARY Signing time: 8/26/2023 12:25:13 PM