Tilak Raj Seth vs Raj Kumar Seth and Others

J.V. Gupta, J.—This appeal has been filed against the order of the Additional District Judge, Amritsar, dated May 6, 1982, whereby the appeal filed on behalf of the Plaintiff-appellant was dismissed, but at the same time, the case was remanded to the trial Court for giving time to the Plaintiff to make up the deficiency in the Court-fee on the memorandum of appeal, and the plaint. Dissatisfied with the same, the Plaintiff has filed this appeal in this Court.

The Plaintiff filed the suit for possession of one-third share of the suit properly by partition One of the issues framed by the trial Court, as to whether, the suit was properly valued for purposes of Court-fee and jurisdiction, was treated as a preliminary if sue and was decided by the trial court vide order dated December 6, 1977, in favour of the Plaintiff as it was found by it that the suit was properly valued for purposes of Court-fee and jurisdiction. However, the suit was dismissed on merits on December 4. 1979. Dissatisfied with the same, the Plaintiff filed the appeal. In the appeal, a preliminary objection was taken that the proper Court-fee was not paid either in the trial Court or in the appellate Court and that the trial Court decided the issue in this behalf on December 6, 1977, wrongly. However, the learned lower appellate Court found it convenient to set aside the finding of the trial Court on that issue, dismissed the Plaintiff''s suit and at the same time, sent the case back to the trial Court for allowing the Plaintiff to make up the deficiency in the Court-fee payable on the memorandum of appeal, and the plaint. Aggrieved against the same, the Plaintiff has filed this appeal in this Court.

After hearing the Learned Counsel for the parties, I am of the considered opinion that the whole approach of the lower appellate Court is wrong and illegal. In the first instance, the lower appellate Court could not go into the question at the instance of the Defendants as to whether the Court-fee paid in the trial Court was proper or not. Reference in this behalf may be made to Santa Singh v. Kabul Singh (1983) 85 P.L.R. 84 Apart from that, even otherwise, the Court-fee was property paid in the trial Court and the issue framed in that behalf was rightly decided in favour of the Plaintiff by the trial Court vide its order dated December 6, 1977. The Full Bench judgment of the Latere High Court in AIR 1934 563 (Lahore) fully covers the case of the Plaintiff. Though the lower appellate Court did notice the above-said Full Bench judgment of the Lahore High Court, yet the ratio of the said case has not been correctly followed by it. Two questions were referred to the Full Bench in the said case One of the questions was whether in determining the Court-fee payable the allegations in the plaint alone should be considered or also the Defendant''s denial or admission of the Plaintiff''s alleged title or possession. The question was ultimately answered by the Full Bench to the effect that in determining the Court-fee payable, the allegations made in the plaint alone should be considered and not the Defendant''s denial thereto. Thus, no fault could be found with the finding of the trial Court on issue No. 3, which was treated as a preliminary one.

In view of the above discussion, this appeal succeeds and is allowed. The impugned order is set aside and the case is sent back to the District Judge, Amritsar, with the direction that the appeal be registered at its original number and be disposed of on merits in accordance with law. The learned District Judge may either decide the appeal on merits himself or may entrust the same for decision on merits to some other Court of competent jurisdiction. The parties have been directed to appear in the Court of District Judge, Amritsar, on March 5, 1984.