Pushkar Narain and another vs Chand Beharilal Ghisulal and another

Nigam, J.C.

In Civil Suit No. 962 of 1949, by his order, dated 21-11-1952 the learned Sub-Judge, First Class, Ajmer, directed the plaintiffs and Amar Narain or any of them who was interested in continuing the suit to pay the deficit court-fee within a week failing which action under O. 7, R. 11, Civil P.C. was to be taken by the Court. By his order dated 12-12-1952 the learned Sub-Judge rejected the plaint under O. 7, R. 11, Civil P.C. for default in payment of the additional court-fee. Against that order, Pushkar Narain and Mukat Beharilal, two of the plaintiffs, have come up in appeal. In the appeal I have heard the learned counsel for the parties.

A preliminary objection has been taken by the learned counsel for respondent 1 to the effect that the court-fee paid on the memorandum of appeal is deficient. For purposes of jurisdiction, the appeal has been valued at Rs. 160/- and a court-fee of Rs. 12/4/- has been paid. A court-fee of Rs. 10/- has been paid on the sum of Rs. 130/- for declaration of ownership and a sum of Rs. 2/4/- has been paid as court-fee on the relief for injunction which has been valued at Rs. 30/-. The learned counsel for respondent 1 has urged that the valuation in the appeal should not be the same as the valuation of the suit but the appeal should be valued on the difference between the court-fee paid and demanded by the plaintiffs in the trial Court. The learned counsel has referred me to -- AIR 1949 1 (Nagpur) The contention of the learned counsel for the appellants is that under S. 7(iv)(d) in a suit for injunction, the court-fee is payable on the amount of the relief sought and that the plaintiff is entitled to state the amount at which he values the relief he seeks. I am unable to agree with the learned counsel. The question involved in the appeal is not whether the plaintiff is entitled to the reliefs he had claimed. That question has not as yet been decided by the learned trial Judge. The question before me is strictly confined to the payment of the court-fee and it is the question whether the plaintiff is liable to pay the court-fee on Rs. 8,300/-or merely on Rs. 160/- which is to be decided in the appeal. I am of opinion that the appeal should be valued on the difference between Rs. 8,300/- and Rs. 160/- that is at Rs. 8,140/-.

The learned counsel for the appellants has next urged that he was not certain as to whether this Court has jurisdiction to hear the appeal and had filed an appeal in the Court of the District Judge also. The learned counsel''s suggestion is that I should decide the question of jurisdiction before a demand of the court-fee is made. I am unable to agree. In 1944 AMLJ 46 (B) this Court held that no action in a suit can be taken until the proper court-fee had been paid and so to speak it was the payment of the court-fee that opens the doors of the Court. I am, therefore, not prepared to decide the question of jurisdiction till proper court-fee has been paid in the appeal.

The next point for my consideration is whether this Court should grant time for payment of court-fee even in the absence of an application under S. 149, Civil P.C. The learned counsel for the appellants urges that O. 7, R. 11, Civil P.C. applies and that this Court is bound to give a direction that the valuation of the appeal should be amended and the deficit court-fee should be paid within the time fixed by it. The learned counsel for respondent 1 urges that O. 7, R. 11 does not apply. There is a conflict between the High Courts on this point But this Court has already followed the Allahabad view in 4 AMLJ 27 (C). With this view I respectfully agree. The view of the Allahabad High Court is generally to be preferred in Ajmer. Following the view of the Allahabad High Court I hold that O. 7, R. 11, Civil P.C. does not apply and order under S. 149, Civil P.C. can be (made?) only when an application is presented to the Court and the Court has heard both the parties on merits as to whether time should be granted or not. The learned counsel for the appellants has also referred me to 1940 AMLJ 19 (D). The fact''s of that case were different from the present one. That was considered as a case in which the office had committed a mistake. The valuation given in this appeal was only Rs. 160/-. That was only on the basis of a particular view of the law held by the learned counsel. As such, the ruling referred to will not help the learned counsel. No application under S. 149 having been given, no question of allowing time for payment of the deficit court-fee arises.

As such, I uphold the preliminary objection and hold that the appeal is under-valued. I dismiss the appeal with costs to respondent 1. Respondent 2 will bear his own costs.