MOHAMMAD MAHIBULLA Vs. SETH CHAMAN LAL

JUDGEMENT

(1.) - This is an appeal by special leave by the plaintiff - Wakf Board. Its suit for declaration of the right to the passage and possession thereof having been dismissed by the trial Court, a title appeal was filed before the District Judge of Karnal. By an exemption notification on the plaint in a suit of this type filed by the Wakf Board, Court-fee of Rs. 15/- is payable. On its memorandum of appeal, the plaintiff had paid the same amount of Court-fee also. Objection was raised to sufficiency of Court-fee and respondents asked for dismissal of the memorandum of appeal as it had not been sufficiently stamped. As a fact, while Court-fee of Rs. 638/- was payable, Court-fee of Rs. 15/- had been paid. This matter was preliminarily considered by the appellate Court and by the order dated 5-5-1966 the Additional District Judge sustained the objection and directed the memorandum of appeal to be dismissed. The High Court did not interfere when plaintiff took the matter before it. Ultimately special leave had been granted by this Court and at the time of grant of leave, the following order was made:

(2.) It is unfortunate that even when that order was made on 27-11-1978 this matter is coming for final disposal almost 13 years thereafter.

(3.) The plea raised by the appellant before the learned Additional District Judge that the appeal was a continuation of the suit and the same Court-fee as was payable on the plaint was appropriate in appeal had been rightly negatived. At the trial stage, there was an exemption and since it was specifically confined to the trial stage there was no ground to claim the benefit at the appellate stage also. But when the learned Additional District Judge came to hold that the memorandum of appeal had not been sufficiently stamped, instead of outright dismissing the memorandum of appeal, an opportunity should have been given and the appellant should have been called upon to make good the deficiency. Under the provisions of Order VII of the Code of Civil Procedure which applies to suits, when the plaint does not bear appropriate Court-fee this is the requirement of the law. Section 107(2). of the Code of Civil Procedure provides: