Piara Singh vs Ajmer Singh and Others

L.N. Mittal, J.—Piara Singh, who was appellant No. 1 before the Lower appellate Court, has filed this revision petition u/s 115 of the CPC

(CPC) assailing orders dated 6.8.2012 passed by the lower Appellate Court thereby dismissing application filed by the petitioner and proforma

respondent No. 20 (appellants before the lower Appellate Court) for permission to deposit the court fee for the first appeal and consequently

thereby also rejecting the appeal due to insufficient court fee. Suit filed by respondent No. 1-plaintiff against the petitioner and proforma

respondents No. 2 to 20 was decreed by the trial Court vide judgment and decree dated 18.9.2008 (Annexure P-2). Defendant No. 1-Piara

Singh-petitioner and defendant No. 4-Bikkar Singh-proforma respondent No. 20 filed first appeal against the said judgment and decree. During

the pendency of the appeal, the said appellants filed application Annexure P-1 for permission to deposit the requisite court fee for the first appeal

alleging that proper court fee could not be affixed on the appeal while filing it due to oversight. It was also pleaded that even official of the Court

had made report (before issuance of notice to the opposite party) that proper court fee had been affixed.

The application was opposed by respondent No. 1-plaintiff. The averments made in the application were controverted.

Learned trial Court vide impugned orders dated 6.8.2012, dismissed the aforesaid application and consequently rejected the appeal for

insufficient court fee. Feeling aggrieved, appellant No. 1 in the lower Appellate Court has filed the instant revision petition to challenge the said

orders.

I have heard the learned counsel for the parties and perused the case file.

Counsel for the petitioner contended that in view of Section 107(2) and Section 149 and Order 7 Rule 11 CPC, Appellate Court has power to

give time to the appellant to pay the deficient Court fee. Reliance in support of this contention has been placed on a judgment of Hon''ble Supreme

Court in Mohammad Mahibulla and another Vs. Seth Chaman Lal (dead) by L.Rs. and others, and two judgments of this Court in Punjab National

Bank Vs. The Lord Krishan Paper Industries and Others, , Haryana State and Another Vs. Geeta Devi and Another, .

On the other hand, counsel for respondent No. 1-plaintiff contended that the appeal had been filed in the year 2008 whereas the application

(Annexure P-1) was filed in the year 2012 and the alleged error in not affixing proper court fee on the appeal was not bona fide. It was argued that

permission to pay the deficient Court fee on first appeal has been rightly declined by the lower Appellate Court. Reliance has been placed on

judgments of this Court in Ajey Textile and Others Vs. The British India Corporation and Others, , Jabar Singh (Died) and Others Vs. Shadi

(died) and Others, and Smt. Krishna Kumar Vs. Ashwani Kumar and Others, and judgment of Hon''ble Supreme Court in Buta Singh (Dead) by

L. Rs. Vs. Union of India, .

I have carefully considered the rival contentions. In view of categorical judgment of Hon''ble Supreme Court in the case of Mohammad

Manibulla (supra), it would be appropriate to give an opportunity to the appellants to deposit the Court fee for first appeal on payment of costs. It

has been clearly held in the said judgment that the Appellate Court has power to grant an opportunity to the appellant to pay requisite Court fee for

the appeal. Following the same judgment, this Court in the cases of Punjab National Bank (Supra) and Haryana State (Supra) has also allowed

opportunity to the appellants to pay Court fee in appeal. Consequently, in the instant case also, the ends of justice would be met if the appellants in

the Lower Appellate Court are permitted to deposit Court fee for the appeal on payment of costs.

Judgments cited by counsel for respondent No. 1 are not attracted to the facts of the instant case. In the cases of Ajey Textile''s (supra) and

Jabar Singh (supra), it was not laid down that Appellate Court has no power to give opportunity to the appellant to deposit Court fee. On the

contrary, it was held that such an opportunity can be given to the appellant if mistake of the appellant was bona fide. Consequently ratio of these

judgments is also to the same effect that the appellate Court has power to give opportunity to the appellant to deposit court fee. Judgment in the

case of Smt. Krishna Kumar (supra) relates to rejection of original plaint under Order 7 Rule 11 CPC and does not relate to deposit of Court fee

in appeal. Consequently, the said judgment has no applicability to the instant case. Judgment of Hon''ble Supreme Court in the case of Buta Singh

(Supra) was in completely different set of facts and circumstances. In that case, in first appeal in land acquisition proceedings, the appellant initially

kept the claimed amount to be low and paid less Court fee, but after hearing of arguments, on gaining impression that the appeals were likely to be

allowed, appellant sought to enhance the claimed amount in the appeal by paying enhanced Court fee. This method adopted by the appellant in that

case was not approved by the Apex court and appellant was held entitled to compensation to the extent of Court fee already paid. Consequently,

this judgment has no bearing on the facts of present case. On the contrary, in view of the judgments cited by counsel for the petitioner, I am of the

considered opinion that an opportunity should be given to the appellants for paying the deficient Court fee but subject to payment of heavy costs.

Resultantly, the instant revision petition is allowed. Impugned orders dated 6.8.2012 passed by the Lower Appellate Court are set aside.

Application (Annexure P-1) filed by the appellants before the lower Appellate Court is allowed and they are permitted to deposit the Court fee on

first appeal subject to payment of Rs. 10,000/- as costs to respondent No. 1-plaintiff. The appeal file is restored to the files of the lower Appellate

Court. Parties are directed to appear before the lower Appellate Court on 23.9.2013. The appellants before the Lower Appellate Court shall pay

the requisite Court fee on or before 30.10.2013 failing which the first appeal shall automatically stand rejected due to non payment of Court fee.