JUDGES CONTRIBUTE TO JUDICIAL CONFUSION IN ORISSA: A SAMPLE INSTANCE

Subhas Chandra Pattanayak

It is not possible for everybody in Orissa to go to the Supreme Court of India against orders of the High Court. So there is least possibility of a recent judgment of Orissa High Court getting tested in the Supreme Court of India. But this judgment kills the clarity and spirit of an earlier judgment of the same High Court while strangulating the original law at Order 7, Rule 11 (b) of the Civil Procedure Code contributing thereby to the confusion that the system of justice sometimes emits.

The law unambiguously says, “Where the relief claimed is undervalued and the plaintiff on being required by the court to so correct the valuation within a time to be fixed by the court fails to do so” there the “plaint shall be rejected”.

Orissa High Court had given to this law absolute clarity by defining ‘rejection’ as ‘refusal of admission’.

In deciding CRP No.268 of 2002 and related Misc. Case No.148 of 2003 on 21.2.2003, the High Court had ruled that the expression, “shall be rejected”, must mean “the plaint shall not be admitted” unless the suit is correctly valued and required duty money received.

It was a epoch making judgment as never before such a clear definition was given to the rejection-component of Order 7 Rule 11 ( c ), C.P.C.

In delivering the judgment, Justice P. K. Tripathy had not stopped with framing this definition; but had gone up to issuing a mandamus that if any District Judge fails to ensure that suits are properly valued and correct amount of court fee quantified before proceeding with the cases, “the High Court should take suitable action including considering the question of efficiency of such judicial officers to function as District Judges”.

This invaluable judgment has been rendered inconsequential by a few judges of the same High Court while allowing Probate Case No. 10 of 2002 converted to C.S.No.38 of 2005 involving property worth at least Rs 1,16,18,138/- to proceed towards “final disposal” in the District Judge Court, Bhubaneswar even though a paltry sum of Rs.5100/- corresponding to a claimed valuation of only Rs.1.5 lakhs is deposited dubiously.

This stark undervaluation, was, by a challenger to the suit, challenged before the Orissa High Court that had given birth to W.P.( C ) No.8077/08 wherein the 2003 case-law referred to supra was strongly stressed upon. The case disposed off on 24 July 2008 sloughed over the definition given to the rejection-component noted above, though the Judge had opined that if the question of valuation is raised afresh the same may be dealt with according to law by the Court below.

The law, read with the case law created by Justice Tripathy in 2003 was clear that the C.S. cannot be maintained sans deposit of duty money matching the valuation of the property which the District judge was duty-bound to determine. But the prayer for determination of the correct amount of duty money as a prerequisite to hearing was rejected again. The Judge, on 24 January 2009 noted, “I do not find any reason to take up the issue at the 1st instance without proceeding with the hearing of the case”. However the order took note of the position that till then valuation was not made an issue and so “whether the case property has been properly valued and if not, the proper valuation thereof and the additional duty money if any, to be paid by the plaintiff-applicant” was added as an issue. But the said issue was not made prerequisite to proceeding with the hearing. So this order too was challenged in W.P.( C) No.3495/09. A single Judge bench of the High Court on 5 September 2009 upheld the District Judge decision even though that was not in consonance with the case law created in 2003. Even the said case law, which the writ-applicant had stressed upon, was not paid attention to in the judgment. Against this judgment a Letters Patent Appeal was preferred. It was dismissed on 17 November 2009 as “misconceived”.

Now therefore, the primacy of determination and collection of duty money on the basis of correct value of the case property made mandatory by Justice Tripathy in C.R.P.No 268 of 2002 stands inconsequential.

Justice Tripathy had made the law so clear that at Para 11 of his judgment (Orissa Law Review 2003 [1]), he had preferred to strengthen his direction with the following observation:

It is provision in Order 7, Rule 11, CPC to reject the plaint if the suit is not properly valued or required court fee is not paid. In other words, a plaint shall not be admitted, inter alia, if there is defect in valuation or non-payment of court fee in accordance with law. Therefore, in this State, the system is prevalent that the plaint be checked by the chief ministerial officer, i.e. the Sheristadar prior to placing the same before the Bench for admission. In that respect, not only Sheristadar should be honest and sincere to his job but also he should be capable of performing that job efficiently and effectively. Therefore, District Judges have been given the discretion to select suitable staff from the eligible category to be posted as Sheristadars. Apart from that, whether or not the Sheristadar performs his duty properly, it is the duty and responsibility of the presiding officer to go into that aspect at the stage of consideration of admission of the suit. In that respect, undoubtedly a judicial officer cannot plead ignorance of law to take an excuse for not properly verifying the aspect of valuation. Therefore, on receipt of a copy of this order, the Civil Judge, Bhubaneswar shall do well to verify that aspect and to pass appropriate order. Learned District Judge shall see to it that there should be a periodical inspection by him of the Civil Courts of the original jurisdiction when the valuation aspect should be particularly gone into. Apart from that, there being requisite instructions from this Court relating to imparting training to ministerial officers by the Registrars of Civil Courts, learned District Judges shall ensure and report compliance that such training programs being undertaken, not for the name sake, but effectively and properly to the satisfaction of the District Judge. In outlaying stations, such training programs be taken up periodically by the senior most Judicial Officer. Where there are more than one officer, Sheristadars and senior grade clerks be also directed to participate in such training programs. The Registry of this Court may also ensure from all the districts relating to compliance of such training program and the matter may be placed before the Court for an administrative decision to take suitable action against the erring District Judges in that respect because to control the subordinate Courts within the Judgeship is not only the duty but also the responsibility of the District Judges and in the event of failure, the High Court should take suitable action including considering the question of efficiency of such judicial officers to function as District Judges.

So, it is not only the duty but also the responsibility of the District judge to see that his Sheristadar does not fail in finding out the correct valuation and honestly helps the Court in imposition of correct amount of court fee. In the instant case it has not happened. Not only the suit stands totally undervalued, but also the derisory duty money was entertained on a day not appointed for accepting the same but posted for purpose of filing of objection, if any, to the question raised on valuation.

But, the High Court has failed to take cognizance of this and has killed the spirit of the definition and force given to Order 7, Rule 11 ( c) of CPC by Justice Tripathy in 2003 as well as the direction he had issued to ensure that bilkers of state exchequer do not succeed in getting undervalued suits fetch their desired relief.

This sample should be cogitated upon if the system of justice is to be saved from an environment of manipulation.

TAX EVASION TRICKS EXPOSED: PETITION PRODS ORISSA HIGH COURT TO PROTECT ITS OWN JUDGMENT

Subhas Chandra Pattanayak

Orissa High Court, in a writ petition, has been urged upon to protect its own order that had directed the Civil Courts specifically the Civil Judge, Bhubaneswar to determine and collect correct amount of Court fees as a prerequisite to proceed in cases of civil nature. The Bhubaneswar Court is allegedly killing its spirit

Order 7, Rule 11. CPC is a provision to reject the plaint if the suit is not properly valued or required Court-fee is not paid.

The Orissa High Court, in deciding Nandakishore Nayak and two others versus State of Orissa case in C.R.P. No. 268 of 2002 on 21 February 2003, had made it absolutely mandatory by defining the word ‘rejection’ as ‘refusal of admission’. According to it, the provision, “in other words” meant, “the plaint shall not be admitted, inter alia, if there is defect in valuation or non-payment of Court-fee in accordance with law”.

The High Court had underlined that the District Judge, specifically in respect to Bhubaneswar, where value of land is as high as tricks to evade Court-fees, must see that the judge’s discretion to pick up his Sheristadar does not end up in wrong choice.

The Sheristadar, in who the responsibility to “check the plaint prior to place the same before the Bench for admission” is vested, must ensure that the plaint is properly valued and correct amount of court fee collected. To wipe out possible failure, the civil judge must make his Sheristadar receive reorientation training on how to arrive at correct amount of the court fees and to ensure that proper valuation of property and collection of correct amount of court fee remain prerequisite to proceeding of the case. Thus saying the High Court had made it clear that dovetailing the civil suits to correct quantum of Court fees is “not only the duty but also the responsibility of the District Judges”.

The issue was treated with such exemplary judicial concern against court premises becoming breeding grounds of tricks to evade court fees that the Judge thought it prudent to note, “in the event of failure, the High Court should take suitable action including considering the question of efficiency of such judicial officers to function as District Judges”.

Bhubaneswar Civil Court has shown scant regards for this judgment, petitioner before the High Court, Mrs. Asharani Mishra has alleged.

In a title suit, property worth several crore of rupees has been shown valued at around rupees one lakh only and, even after objection on valuation ground was legally raised by her, the process of law has been abused to accept many hundredth time less Court-fee, she has shown the High Court.

The most intriguing part of the proceeding in the civil court is that when the case was posted for objection if any on the objection she had raised against the reduced valuation of her ancestral property and the party involved having no objection, the higher value that she had mentioned was supposed to have generated higher revenue for the State, there was a “stage-managed acceptance of duty money on the basis of premature assumptions on valuation”, which according to the petitioner, was a stark instance of under-valuation.

This position being challenged in the High Court, in W.P.( C ) 8077/2008, it was disposed of with observations that in view of the order cited supra, if the objection regarding valuation of the property is raised, “the same will be dealt with by the learned District Judge in accordance with law”.

And, the law stipulates that the suit must be “rejected” if the same “is not properly valued” and “shall not be admitted” “if there is defect in valuation or non-payment of Court-fee in accordance with law”.

But, the District Judge, Khurda at Bhubaneswar, has decided to proceed with the suit notwithstanding objection to valuation raised after the High Court verdict, the petitioner has told the High Court.

According to the District Judge, the case having been posted for hearing on acceptance of an amount of duty money, the case is to proceed pending finalization of the correct amount at the stage of final hearing.

The petitioner has placed before the High Court that this order is bad inasmuch as it has expressed reliance on an “illegal order i.e. the stage-managed acceptance of duty money on the basis of premature assumptions on valuation” and “is capable of pushing the case from this illegality to another phase of illegality”.

The issue raised is “whether the District Judge can slough over / disregard / disobey the guidelines issued by the Hon’ble High Court in the year 2003 and can proceed with the case without realizing the correct amount of duty money as per the valuation on records”.

It has further begged the High Court to intervene to set the case clear of the misleading term “final hearing”, which is not defined in law but is capable of abusing of the process of law.

If Mrs. Mishra wins, it will be a gain of at least Rs. 7 lakhs for the State exchequer where as the Civil Court has accepted duty money worth only Rs.5 thousands. The negligence of Orissa officers as well as the government advocate has contributed to this loss of revenue.

Hence, Mrs. Mishra has prayed the High Court to issue orders to the Government not to neglect financial interest of the State in the instant case.

The case has been admitted under W.P.[C] No.3495/2009. Eminent lawyer Dhruba Charan Mohanty of Bhubaneswar is representing the petitioner.