Nihal Kaur and Others vs Madan Lal and Others

J.V. Gupta, J.—The Plaintiffs-Appellants filed the suit for possession of 4/5th share by partition of the property in dispute. One of the objections taken by the contesting Defendants was that the suit was not properly valued for the purposes of Court fee and jurisdiction. Consequently, it was one of the issues framed by the trial Court. The trial Court did not treate the said issue of Court-fee and jurisdiction as a preliminary one and decided the same along with the other issues on merits. Ultimately under the said issue, it was held that the suit was not properly valued for purposes of Court-fee and jurisdiction. According to the trial Court, the Plaintiffs were required to pay the Court-fee on the value of Rs. 32,000/- which came to Rs. 2.441.60, whereas the Plaintiff had paid the Court-fee of Rs. 19.50 only. Ultimately, the trial Court dismissed the suit on merits as well with the following observations:

In view of my findings recorded on the foregoing issues the suit of the Plaintiff does not succeed and as such it is dismissed with no order as to costs. Plaintiffs are directed to file the Court-fee to the tune of Rs. 2,441.60p. less the Court-fee already filed with the plaint within a period of 15 days from today, i. e., 16.1.1984. In the event the Plaintiffs fail to pay the said Court-fee, in that eventuality, the plaint shall stand rejected and the suit shall be deemed to have been decided on merits and not under Order 7 Rule 11 C. P. C. as observed in case Shrimati Phul Wati v. Sumera and reported in 1983 P. L. R. 793. Decree sheet be prepared accordingly.

Dissatisfied with the same, the Plaintiffs filed the appeal by paying a Court-fee of Rs. 39.00. The said appeal was filed on February 17, 1984, and was duly entertained by the office, without any objection as to the quantum of Court-fee. However, when the appeal came for final hearing on May 7, 1986, it was found that the memorandum of appeal was deficient in Court-fee. Accordingly, it was found that the memorandum of appeal had to be rejected straightway. Dissatisfied with the same, the Plaintiffs have filed this appeal against the rejection of the memorandum of appeal.

According to the learned Counsel for the Appellants, no opportunity was afforded to them to make up the deficiency, if any, in Court fee. Since the appeal was duly entertained in the year 1984, and had remained pending for two years, it was in the fitness of things that the lower appellate Court before rejecting the memorandum of appeal should have allowed opportunity to the Plaintiffs to make up the deficiency, if any, in the Court fee.

Since the Plaintiffs are challenging the findings of the trial Court on the question of Court-fee as well, for the time being, they will be required to pay the Court-fee on the amount of Rs. 2441.60 and will make up the deficiency accordingly. In case it is found that the said finding of the trial Court was correct, then, before the appeal could be heard on merits, they would be required to pay the Court-fee as to make up the deficiency in the plaint as well as in the appeal failing which his appeal will be dismissed for want of court fee. The parties have been directed to appear before the District Judge, Bhatinda, on February 20, 1987. One date will be given by the District Judge Judge for making up the deficiency, as observed earlier.

As a result, the appeal is allowed and the judgment and decree rejecting the memorandum of appeal dated May 7, 1986, are set aside.