Batakrushna Sethy and Others vs Muktilata Kar and Others

B.K. Misra, J.—Challenging the order passed by the learned Civil, Judge (Sr. Divn.), 1st Court, Cuttack in Civil Suit No. 30 of 2007 dated 16-11-2010 and 17-12-2010 vide Annexures-6 and 9 respectively, the writ petition has been filed by the present petitioners, who are the plaintiffs in the said Suit. The petitioners as plaintiffs have filed a suit for declaration of their right of easement over the ''A'' Schedule land described in the plaint and also further declaration that the opposite parties (defendants) have no manner of right, title and interest over the suit schedule ''A'' property and to restrain them permanently from changing the nature and character of the suit land not to prevent the plaintiffs-petitioners to use the suit land as their path way etc. The suit was valued at Rs. 3,11,000/-, but since because the plaintiffs-petitioners claimed to be scheduled castes, (DHOBA) prayed for exemption of Court fees which was allowed by the Court below. The opposite parties (defendants) in the said Suit entered appearance and have filed their written statement. When pleadings were complete and issues were settled, hearing of the suit was taken up. The present petitioner No. 5 who is also plaintiff No. 5 in Civil Suit No. 30 of 2007 tendered his evidence and in his cross-examination he deposed that in the year 1984 he adopted Christianity and started living in a rented house at Mission Road, Cuttack. When P. W. 1, namely, the petitioner plaintiff No. 5 deposed in Court on oath that he is a Christian since 1984, opposite party Nos. 1 to 4 (Defendants) filed a petition u/s 12 of the Court-fees Act read with Order 7, Rule 11(d) of the CPC on 17-3-2010 praying the Court therein to recall the order of exempting the petitioner-plaintiffs from paying the Court fees and to direct the plaintiffs to pay Court Fees within a stipulated period failing which the plaint should be rejected. The present petitioners filed their objection to such prayer of defendant Nos. 1 to 4. The learned Court below heard the parties and passed the impugned order on 16-11-2010 (Annexure-6) directing (he present petitioner-plaintiffs to pay Court Fees of Rs. 10635/-as per the valuation given in the plaint and recalled the order dated 22-1-2007 wherein the petitioner plaintiffs were exempted from paying Court fees. Simultaneously, the Court below gave seven days time to the petitioner-plaintiffs to pay Court fees failing which the plaint would be rejected. Thereafter, the petitioner plaintiffs took time for payment of the Court fees. Ultimately, on 4-12-2010 a petition was filed by the plaintiffs to recall and modify the order dated 16-11-2010. The said prayer was rejected by the learned Court below on the ground that if the petitioner plaintiffs were aggrieved by the impugned order under Annexure-6 they can challenge the said order before a higher forum. Those orders of the learned Civil Judge (Sr. Divn.), 1st Court, Cuttack under Annexures-6 and 9 are under challenges in this writ petition.

I have heard learned counsel appearing for the respective parties including learned Advocate General, who appeared for the State. Learned counsel appearing for the petitioners in this case contended that the evidence of P. W. 1 during his cross-examination simply shows that in 1984 he adopted Christianity but that cannot amount to professing Christianity by the petitioner No. 4. It was contended that when the petitioner plaintiffs are ''Dhoba'' by caste they are not required to pay any Court fees and the impugned order at Annexure-6 be set aside. It was also contended that since in the written statement the opposite party-defendants did not raise at all the point that the petitioner plaintiff No. 5 is a ''Christian'', the defendants are estopped from questioning the same in a later part of the proceeding.

Learned counsel appearing for the contesting opposite party-defendants resisted the contention raised by the learned counsel for the petitioner-plaintiffs. The learned Advocate General argued with vehemence that when the petitioner-plaintiffs with a view to defraud the State claimed exemption from payment of Court fees even though before filing of the suit the petitioner-plaintiff No. 5 has changed his religion and converted himself to a Christian, the petitioner-plaintiffs are bound to pay the Court fees in the suit. It was also contended by the learned Advocate General that parties should come to Court with clean hand and the tendency to hoodwink the Court should be curbed with an iron hand and the Court should not view the matter lightly as by such type of unhealthy practices valuable Court''s time is being wasted when the dockets are over-loaded. The learned Advocate General by placing reliance on a judgment of the Apex Court as reported in Dalip Singh Vs. State of U.P. and Others, contended that "those who attempts to pollute the stream of justice or who touches the pure fountion of justice with tainted hands, are not entitled to any relief, interim or final". The learned counsel appearing for the other opposite parties contended that when the opposite party defendants came to know that petitioner plaintiff No. 5 has embraced Christianity and when the point involved is a question of law, estoppel has no role to play and accordingly it was argued with vehemence that the writ petition should be dismissed with exemplary cost.

I have gone through the entire case record. There is no dispute that the petitioner-plaintiff No. 5 in his cross-examination in C. S. No. 30 of 2007 deposed that he adopted ''Christianity'' in the year 1984. Admittedly the suit has been filed by the petitioner-plaintiffs in 2007 i.e. by then petitioner-plaintiff No. 5 was a Christian having changed his religion in the year 1984. When petitioner-plaintiff No. 5 deposed that he adopted Christianity in 1984 that means he changed his religion to Christianity and he choose to live so by renouncing his original religion and for all practical purposes he became a Christian. When petitioner-plaintiff No. 5 became a Christian within the meaning of Paragraph-3 of the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act, 1956 and professes Christianity i.e. a religion different from the Hindu or a Sikh religion he cannot be deemed to be a member of the Scheduled Caste. The said provision reads as follows:--

Notwithstanding anything contained in paragraph 2, no person who professes a religion different from the Hindu or the Sikh religion shall be deemed to be a member of a Scheduled Caste.

Thus, even if the petitioner-plaintiff No. 5 produced a caste certificate issued by a Revenue Officer showing that he was a Scheduled Caste i.e. Dhoba by caste the same has lost its validity when he changed his religion from Hinduism to Christianity. The learned Civil Judge (Sr. Divn.) 1st Court, Cuttack in the impugned order at Annexure-6 directed the plaintiffs to pay the Court fees on the valuation of the suit given by the plaintiffs by recalling its earlier order in exempting the plaintiffs from paying the Court fees. Direction was also given to the petitioner-plaintiffs to deposit the required Court fees within seven days failing which the plaint would be rejected and the suit was posted to 23-11-2010 for payment of Court fees and for further hearing. It is an admitted fact that on 23-11-2010 the petitioner-plaintiffs prayed for two weeks time to deposit the Court fees which was allowed and the matter was adjourned to 4-12-2010 as a last chance directing for payment of Court fees. When the matter was taken up on 4-12-2010 the plaintiffs produced caste certificate which was obtained on 1-12-2010 in Misc. Case Nos. 1388 and 1389 of 2010 showing that the petitioner-plaintiffs 1 and 3 are Scheduled Castes as they belong to ''Dhoba'' community. When the direction of the Court is to pay Court fees on entire valuation of the suit which was calculated at Rs. 10,635/- and when the petitioner-plaintiff No. 3 in his evidence on oath before the Court deposed that he is deposing for himself and also on behalf of other plaintiffs being duly authorized and since the petitioner-plaintiff No. 5 claims to have joint interest over the suit properties along with the other plaintiffs the question of proportionate payment of Court fees does not arise at all. Besides that when the petitioner-plaintiffs had accepted the orders of the Court when they were asked to pay the Court fees and sought for time twice they cannot turn around and claim mat they are not to pay any Court fees as they belong to ''Dhoba'' by caste especially when the petitioner-plaintiff No. 5 admits that he adopted Christianity in 1984. After going through the impugned orders at Annexures-6 and 9, I do not find any infirmity in those orders calling for any interference by this Court in exercise of certiorari jurisdiction.

Accordingly, the present writ petition being devoid of merit stands dismissed.

Before parting with the case, I am of the firm view that the present case is a fit case where the Collector, Cuttack shall cause an enquiry with regard to the caste certificates issued to Batakrushna Sethy, Lingaraj Sethy and Chitaranjan Sethy who are petitioner Nos. 1, 3 and 5 in this case, vide Misc. Certificate Case Nos. 1389 and 1388 of 2010 and in Misc. Case No. 275 dated 20-10-1981 respectively and take appropriate steps in consonance with the instructions of the Government in Scheduled Tribe and Scheduled Caste Development Department letter No. 25286 dated 16-8-1989. Copy of this order be furnished to the learned Advocate General for onward communication to the Collector, Cuttack for appropriate action. Since the matter has been delayed much the learned Civil Judge (Sr. Divn.) 1st Court, Cuttack is to proceed with the Civil Suit No. 30 of 2007 without any further delay and the parties are directed to co-operate with the Court so that the suit would be disposed of as expeditiously as possible, preferably within a period of six months.

The interim order passed in Misc. Case No. 136 of 2011 stands vacated.