Sohan Lal Vs. the Distt. and Sessions Judge and ors.

Sohan Lal vs The Distt. and Sessions Judge and ors.

Disposition Petition allowed Court Rajasthan Decided Mar 17, 1997

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Citation: sooperkanoon.com/767116
Court: Rajasthan High Court
Judge: P.P. Naolekar, J.
Decided On: Mar 17, 1997
Case Number: S.B. Civil Writ Petition No. 1247 of 1996
Subject: Election;Civil
Disposition: Petition allowed

Case Summary

AI-generated summary - not the official court judgment text.

Rajasthan Municipalities Act, 1959 - Section 36 and Rajasthan Court Fees and Suits Valuation Act, 1961--Section 11 and schedule II Article 11--Deficit court fee on election petition--No opportunity given to rectify mistake--Held, order rejecting petition is against provisions of law.;The petitioner had not been give...

Key legal issue: Election;Civil
Outcome / disposition: Petition allowed

Parties & Advocates

Appellant / Petitioner

Sohan Lal

Respondent

The Distt. and Sessions Judge and ors.

Legal References

Reported In: 1997WLC(Raj)UC584; 1997(1)WLN393

Excerpt

rajasthan municipalities act, 1959 - section 36 and rajasthan court fees and suits valuation act, 1961--section 11 and schedule ii article 11--deficit court fee on election petition--no opportunity given to rectify mistake--held, order rejecting petition is against provisions of law.;the petitioner had not been given any. opportunity to rectify the mistake and pay the deficit court-fee within the time fixed by the court, the rejection of the election-petition of the petitioner by the election tribunal is against the provisions of law and cannot be sustained.;writ allowed - .....short, to be called the act of 1961' hereinafter). when the court-fee is required to be paid under the act of 1961, the provisions of the act of 1961 are attracted for consideration and the manner in which the court-fee is required to be paid, sub-section (1) of section 11 lays down that the court-fee payable shall be decided by the court on the basis of the materials and allegations contained in the plaint and on the material contained in the statement. this decision, however, is subject to further review and correction in the manner provided under sub-section (2). sub-section (2) of section 11 provides that the defendant may plead that subject-matter of the suit has not been properly valued or that the fee paid is not sufficient and the court shall decide that question as a preliminary issue. if the court decides that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient, the court shall fix a day before which the plaint shall be amended in accordance with the court's decision and the: deficit, fee shall be paid. if the plaint is not amended or the deficit-fee is not paid within the time allowed the plaint shall be rejected and the court shall pass order as it deems fit regarding cost of the suit.3. therefore, it is incumbent upon the court if it reaches the conclusion that proper court-fee is not paid to give opportunity to the party to pay the deficit court-fee within the time mentioned in the order and, if that order is not complied with, then the court gets the jurisdiction to reject the petition for non-payment of the deficit court-fee. it is apparent from the impugned order that no such opportunity had been given to the petitioner, although prayed for, before the decision of the case, for payment of the deficit court-fee. as the petitioner had not been given any opportunity to rectify the mistake and pay the deficit court-fee within the time fixed by the court, the rejection of the election-petition of the.....

Full Judgment

P.P. Naolekar, J.

1. On 23.12.94, election-petition was presented before the Election Tribunal (District & Sessions Judge, Bikaner-respondent No. 1) under Section 36 of the Rajasthan Municipalities Act, 1959 (in short, to be called 'the Act' hereinafter) challenging the election of Ward-Member of the Municipal Council, Bikaner. On the election-petition, stamp of Rs. 11/-was affixed. On verification, the office made the report: 'proper payment of court-fee and case be registered'. By order dated 03.01.95, the Election Tribunal registered the case and directed issuance of notices to the respondents. On 18.05.95, application was moved by respondent No. 2 Kana Ram - returned candidate - that the election petition as filed is not maintainable as affixture of the court-fee of Rs. 11/- is not in accordance with law as under the Rajasthan Court-Fee & Suit Valuation Act, 1961 Schedule - II vide Article 11(E) it is required that every election petition questioning the election of a person to the office of Member of the local-authority should carry the court fee of Rs. 50/- and, therefore, the election petition be dismissed. On 11.07.95 petitioner filed application that he is ready and willing to pay the deficit court-fee. On 11.03.96, by the impugned order, the election petition was dismissed on the preliminary submission of insufficient payment of court-fee. The petitioner has challenged the impugned order before this Court.

2. It is submitted by the counsel appearing for the respective parties that no court fee is prescribed on election-petition under the Act and the court-fee required to be paid on the election-petition challenging the election of a member of any local-authority is provided under the Rajasthan Court-Fee & Suit Valuation Act, 1961 (in short, to be called the Act of 1961' hereinafter). When the Court-fee is required to be paid under the Act of 1961, the provisions of the Act of 1961 are attracted for consideration and the manner in which the court-fee is required to be paid, Sub-section (1) of Section 11 lays down that the Court-fee payable shall be decided by the Court on the basis of the materials and allegations contained in the plaint and on the material contained in the statement. This decision, however, is subject to further review and correction in the manner provided under Sub-section (2). Sub-section (2) of Section 11 provides that the defendant may plead that subject-matter of the suit has not been properly valued or that the fee paid is not sufficient and the Court shall decide that question as a preliminary issue. If the Court decides that the subject-matter of the suit has not been properly valued or that the fee paid is not sufficient, the Court shall fix a day before which the plaint shall be amended in accordance with the Court's decision and the: deficit, fee shall be paid. If the plaint is not amended or the deficit-fee is not paid within the time allowed the plaint shall be rejected and the Court shall pass order as it deems fit regarding cost of the suit.

3. Therefore, it is incumbent upon the Court if it reaches the conclusion that proper court-fee is not paid to give opportunity to the party to pay the deficit court-fee within the time mentioned in the order and, if that order is not complied with, then the Court gets the jurisdiction to reject the petition for non-payment of the deficit court-fee. It is apparent from the impugned order that no such opportunity had been given to the petitioner, although prayed for, before the decision of the case, for payment of the deficit court-fee. As the petitioner had not been given any opportunity to rectify the mistake and pay the deficit court-fee within the time fixed by the Court, the rejection of the election-petition of the petitioner by the Election Tribunal is against the provisions of law and cannot be sustained.

4. Accordingly, the writ petition is allowed. The order impugned dated 11.03.96 Annexures-5 is set aside. The election petition stands restored and the Election Tribunal is directed to proceed with the matter in accordance with law. As the matter is pending consideration since 1994, both the parties are directed to remain present before the Election Tribunal (District & Sessions Judge, Bikaner) on April 21, 1997. The petitioner shall make an application for amendment of the election petition so far as the payment of court-fee is concerned and shall pay the deficit court-fee of Rs. 39/- within a period of 7 days from 21.04.97.

Same Court & Year Rajasthan · 1997 Same Parties Sohan Lal vs The Distt. and Sessions Judge and ors. Same Subject Election;Civil Same Judge P.P. Naolekar, J.

Election;Civil