Nathu vs Jagan Nath

S.C. Mital, J.—Briefly, the facts leading to this regular second appeal are that Nathu filed a suit for possession by redemption of the mortgaged land against Jagan Nath (now represented by his legal representatives) and others. By its judgment dated 14th December, 1970, the trial Court passed a preliminary decree, directing Nathu:

(i) to make good the deficiency of Court fee on or before 28th February, 1971, failing which his plaint shall be deemed to have been rejected"; and

(ii) to deposit the mortgage amount on or before 1st May, 1971 failing which the suit shall be deemed to have been dismissed with costs.

It is not disputed that Nathu deposited the mortgage amount within time, thereby he complied with the above-quoted second direction. As to the making good the deficiency of Court-fee, Nathu was late by two days. Taking advantage of this delay, the mortgagees (judgment debtors) applied for dismissal of the suit. The move was countered by Nathu by an application under Sections 148, 149 and 151 of the CPC for extension or condontion of the delay. The trial Court dealt with both the applications. Upon a consideration of the entire matter in depth, the trial Court by its order dated 9th. May, 1972, condoned the delay in the payment of the Court-fee. Consequently, the application of the mortgagees was dismissed. Then on 16th June, 1972, the final decree was passed in favour of Nathu. Feeling aggrieved, the mortgagees preferred an appeal which was accepted by the learned Additional District Judge, Gurdaspur. In the result, the abovesaid final decree was set aside and Nathu''s suit was dismissed. The present appeal has been filed by Nathu.

It may be mentioned at the outset that Learned Counsel for the parties and of Nathu Appellant in particular cited numerous rulings having a bearing on the provisions of Order 7, Rule 11 of the CPC Admittedly, none of them was shown to be applicable to the peculiar facts of this case.

It is now well settled that the question of Court-fee should be determined at the earliest possible opportunity. If the Court finds that the relief claimed is under valued, it should require the Plaintiff to correct the valuation within a time fixed by it and if he fails to do so, his plaint should be rejected under Order 7, Rule 11, Code of Civil Procedure. In case the matter requires investigation, the Court should get evidence of the parties bearing on the point and if it finds that the Court fee paid is insufficient, it should stay further proceedings in the suit and require the pontiff to make good the deficiency within a specified time, vide AIR 1935 75 (Lahore) and Mum v. Giani (1968) 70 P.L.R. 530. But in the case in hand it so happened that specific issue with regard to additional mortgage of Rs. 1000/- was tried along with all the other issues and decided by the judgment culminating in the passing of the preliminary decree. The present confusion would not have arisen if the trial Court had given the decision of the issue of the additional mortgage of Rs. 1000/- in favour of the mortgagees before the passing of the preliminary decree and ordered the mortgagor to make good the deficiency of the court-fee. In that event, the trial Court''s decision would have been in accord with the above said well settled law. Since the preliminary decree passed under Order 34, Rule 7, Code of Civil Procedure, included the order under Order 7, Rule 11 Code of Civil Procedure, therefore, the matter could not be canvassed before the lower appellate Court with clarity.

Before the lower appellate Court, the emphasis was laid on the first direction given in the preliminary decree that if the deficiency of the Court-fee was not made good on or before 28th February, 1971, the plaint shall be deemd to have been rejected. Since the direction was not strictly complied with and there was delay of two days in the payment of Court-fee, the lower appellate Court felt that the rejection of the plaint was automatic. Thereafter, the trial Court was not seized of the case and it had no jurisdiction to condone the delay. Quite to the contrary, their Lordships of the Supreme Court in Shri Jogdhayan v. Babu Ram and Ors. Civil Appeal No. 94 of 1972, decided on 23rd November, 1982 have adversely commented upon the Courts, craze for technicalities of law at the cost of justice". That was a case of short deposit of 25 paise in the payment of purchase money within the specified time. On behalf of the vendee-judgment debtor, emphasis was laid on the rigors of Order 20, Rule 14, Code of Civil Procedure, which lays down that "if the purchase money and the costs, if any, are not so paid, the suit shall be dismissed with costs." While interpreting Section 148 of the Code, their Lordships held that discretionary power was given for the purpose of securing the ends of justice in case of necessity and that the Court concerned committed error in not adverting to it. Applying the ratio of this authority to the facts of the present case, I have no hesitation in finding that the lower appellate Court erred in interfering with, the discretion exercised by the trial Court.

Another aspect of the case put forward by the Learned Counsel for the mortgagor was that by its order dated 9th May, 1972, the trial Court condoned the delay in making good the deficiency of Court fee and also dismissed the application of the mortgagees praying for rejection of the plaint. If the mortgagees had with promptitude successfully challenged the said order, the plaint would have been rejected, meaning thereby that the occasion for passing the final decree would not have arisen at all. Because of the mortgagees in action, the final decree was passed on 16th June, 1972, it is note worthy that the passing of the final decree depended on the payment of the mortgage amount within the time prescribed in the preliminary decree.

The mortgagor having complied with that direction became entitled to it and the Court granted him the final decree. Now the proposition canvassed by the Learned Counsel for the mortgagor is, how can the final decree be set at naught by an order rejecting the plaint? But, in view of my finding in favour of the mortgagor in the preceding paragraph, I have left this question open.

For the foregoing reasons, I accept the appeal, set aside the impugned judgment and decree of the lower appellate Court and restore that of the trial Court. No order as to costs.