Mrs. Rama Saini and Another vs Gurbax Rai and Another

G.C. Garg, J.—Rama Saini and another filed a suit for partition of 3/8th share in the property and for permanent injunction restraining defendant No. 1 to sell the same. Details of the properties is as under:

"Suit for partition of 3/8th share of the following properties:

(i) Two residential buildings with shops underneath situate in bazar Keserian, Kapurthala.

(ii) Four shops situate outside Dana Mandi, Kapurthala and

Suit for rendition of accounts of the income, rent and profits of the aforesaid properties and a suit for decree the share of the plaintiffs out of the said amount found due to the plaintiffs against defendant No. 1 to the accounting party, and

Suit for permanent injunction restraining the defendant No. 1 to sell and defendant No. 4 to purchase house situate on the southern side of Bazar Keserian, Kapurthala."

Suit was resisted by the defendants and the trial court by judgment and decree dated 19.9.1992 dismissed the same with costs. It may be noticed here that one of the issues framed in the suit is to the following effect:-

" Whether the suit is properly valued for the purpose of Court fee and jurisdiction?" OPP.

The trial Court under this issue came to the conclusion that the suit was not properly valued for the purpose of court fee and jurisdiction and consequently decided the said issue against the plaintiffs after observing the value of the properties is more than Rs. four lacs and the plaintiffs should have paid court fee at advalorem value of the said properties. The plaintiffs aggrieved by the judgment and decree of the trial court filed appeal before the District Judge. The District Judge by his order dated 16.2.1993 came to the conclusion that the appellants could not be permitted to urge that decision of the trial court on issue No. 1 was wrong unless a proper memorandum of appeal is filed and court fee as per the decision of the lower court on issue No. 1 is affixed on the memorandum of appeal. In this situation it was held that court fee affixed on the memorandum of appeal was deficient and the appellants were granted an opportunity in exercise of power u/s 149 of the CPC (for short the Code), to make good the deficiency in court fee on the memorandum of appeal. It was further directed that on failure of the appellants to make good the deficiency of court fee on the memorandum of appeal it shall be liable to be rejected under Order 41 Rule 3 of the Code. Deficiency of court fee on the memorandum of appeal was not made good in terms of the order dated 16.2.1993. An application for extension of time was moved but learned District Judge on a consideration of the matter came to the conclusion that court fee on memorandum of appeal being deficient and there being no proper memorandum of appeal, the appeal is liable to be rejected under Order 41 Rule 3 read with Order 7 and Rule 11 and Section 107 of the Code and he ordered accordingly. Decree sheet was ordered to be drawn.

Against the above judgment and decree of the appellate court the plaintiffs filed this appeal in this court. They again did not pay court fee on the memorandum of Regular Second Appeal. On an objection raised by the Registry and court fee having not been paid, the matter has been placed before me to determine, whether or not the appellants are liable to pay court fee on the memorandum of appeal filed in this Court.

Learned counsel for the appellants submitted that the trial Court gravely erred in conclusion that the plaintiffs were required to pay advalorem court fee. According to the learned counsel, the plaintiffs are co-sharer and are in deemed possession of the property in dispute and, therefore, are not required to pay advalorem court fee and proper court fee had been paid on the plaint. Learned counsel for respondent No. 1 however, placing reliance on Jabar Singh (Died) and Ors. v. Shadi (Died) and Ors. (1975) 77 P.L.R. 186 and Jabar Singh deceased represented by his LRs v. Shadi deceased represented by his L.Rs (1978) 80 P.L.R. 681 submitted that the plaintiff-appellants cannot be allowed to question the finding recorded by the courts below on merits unless the court fee on adavolrem basis as determined by the trial court is first paid on the memorandum of appeal. In Jabar Singh''s case (supra) (1975) 77 P.L.R. 186 a Single Judge of this Court on a consideration of the matter concluded as under:-

" The third argument raised on behalf of the appellant is equally without merit. Before the appellant can be permitted to urge that the decision of the trial Court on the preliminary issues was wrong a proper memorandum of appeal had to be filed. The court-fee on the memorandum of appeal had to be affixed in accordance with the amended plaint and the decision of the court given on the preliminary issues on the basis of which the plaint was amended. Unless this is done there is no proper memorandum of appeal before this Court and it is not open to this Court to consider the merits of the argument so far as the preliminary issues are concerned. There being no properly constituted appeal before me, the question whether the memorandum of appeal was to be affixed with Court-fee according to Schedule 2, Article 17, Clause 6, of the Court Fees Act cannot be gone into and decided in these proceedings."

The view taken above was affirmed by the Letters Patent Bench as reported in (1978) 80 P.L.R. 681. Thus in the light of the view of this Court as affirmed by the Letters Patent Bench, I have no option but to hold that the objection raised by the Registry is well-founded and the appellants are required to pay advalorem court fee on the memorandum of appeal before they can be heard on the merits of the controversy covered by issue No. 1 as answered by the trial court.

Faced with the above situation, learned counsel for the appellants prayed that the appellants may be granted two months'' time to make good the deficiency in court fee. I find that the prayer made is quite just and reasonable. Consequently, I grant two months'' time to the appellants to make good the deficiency in court fee on the memorandum of appeal.

Appeal be now put up for motion hearing after the requisite court fee is paid.