Orissa High Court fails to ensure implementation of its own Order

Subhas Chandra Pattanayak

Bhubaneswar is a city of high-value-landed properties. But, it is also a city where land value is shown very low in sale-deeds and civil cases in order to bilk the State of its money in form of Court Fee.

In Nandakishore V. State, this mischief having come to the attention of Orissa High Court, a direction was given to the District Judge of Bhubaneswar at Para 11 of the judgment -2003(1) OLR-473 – that, he must “reject the plaint if the suit is not properly valued or required Court-fee is not paid”, because, that is the stipulation under Order 7, Rule 11, CPC.

Analyzing the provision, the High Court ordered, “a plaint shall not be admitted, inter alia, if there is defect in valuation or non-payment of Court-fee in accordance with Law.”

If the District Judge, Bhubaneswar admits a plaint despite it being not properly valued and required stamp duty not paid, then “the High Court should take suitable action including considering the question of efficiency of such judicial officers to function as District Judges”. (Ibid).

The High Court has never inspected the District Court of Bhubaneswar to find whether or not this Order of it is being honored. But, on the other hand, it has failed to protect its order when instances of willful violation thereof by the District Judge has come to its attention.

C.S.No.38 of 2005 is an instance.

Two lots of landed properties worth Rs.1,16,18,138/- as per valuation determined by competent authorities of the State, had entered into this suit, where the plaintiffs had shown it as a property worth only a sum of Rs.1.5 lakh and the Civil Court had accepted the plaintiffs’ own valuation in stark disobedience to the High Court Order cited above and accepted a paltry sum of Rs.5,100/- only towards Court fee.

An OP in the suit, apprehending that this stark undervaluation, once judicially accepted, would lead to ruin of the real value of the share of that OP, raised an objection on the valuation of the suit. The Civil Judge kept the objection to be taken up at the time of the final hearing.

This was a blatant violation of the Provision of Law as well as that of the order of the High Court, as the provision of CPC and the mandate of the High Court unambiguously direct that the Civil Judge must ensure proper valuation of the property and take payment of proper amount of Court fee as prerequisite to admission of the plaint, which, otherwise must be rejected.

As the records show, the matter has gone repeatedly to the High Court seeking implementation of its order of 2003. But at no point of time the Court has thought it prudent to ensure that its order be implemented.

However, on 26.7.2019, a District Judge then in Chair, could appreciate the issue and directed the plaintiffs “to deposit the stamp duty” as per official valuation, before proceeding further with the case.

This Order has been challenged in C.M.P. No.939 of 2019 and the High Court has stayed the same on 20.12.2019 till disposal of the same.

It is intriguing that the Govt. of Orissa has not shown any interest in the matter even though the treasury has been bilked of a very huge sum of money in form of stamp duty. The Government Pleader is missing in the records of the case after filing the valuation report prepared by the competent authorities.

The Public is in jeopardy on five counts:

(1) That, the responsibility of the G.P. to protect public interest in timely collection of proper amount of stamp duty is not visible;

(2) No action as pronounced in the judgement in Nandakishore vrs State (cited supra) has been taken so far against the District Judges that have not rejected the case in view of the discernible under-valuation and nonpayment of proper amount of stamp duty;

(3) The plaint is still alive, despite not being properly valued and required Court-fee not paid, when in such cases, the law has given only one option to the District Judge, i.e.rejection of the Plaint;

(4) In interpreting the provision of Order 7, Rule 11, CPC, the High Court had mandated in the Nandakishore case that, if there is defect in valuation or non-payment of Court-fee in accordance with Law, the plaint shall not be admitted. Therefore, admission/non-rejection of the plaint despite defect in valuation and non-payment of Court Fee in accordance with proper valuation, is a clear case of contempt of the High Court. Yet, there is no contempt case against the judge that admitted the plaint and against the judges that have not rejected the plaint so far; and

(5) In the cited case, it was mandated that, the High Court should take suitable action including considering the question of efficiency of such judicial officers to function as District Judges. On becoming aware of the illegal admission of the plaint, the High Court should have reviewed the “efficiency” of the judicial officers to function as the District Judge(s). But it has not done, as a result of which the gravity of the quoted order of the High Court has been lost. This is a great loss to the public that pride in the inviolability of their High Court.

We have nothing to say on what shall happen to the case before the District Judge, Bhubaneswar or the C.M.P. in the High Court. But in our duty to the people, we have to emphasize that, the High Court should ensure implementation of its 2003 order in Nandakishore case and initiate action against the judicial officers that have made a farce of the Law and the High Court in C.S.No.38 of 2005. Had the high Court any right to kill its own order quoted supra, we could have wished that; but the High Court cannot do that,as it has no power to kill or nullify Order 7, Rule 11, CPC.

The public has the right to be free from the five-point jeopardy enumerated above, as otherwise the law shall become a conundrum.

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