AJAYAKUMER Vs. JYOTHI

JUDGEMENT

(1.) The additional plaintiffs 2 to 5 came up against the order of remand passed by the first appellate court directing adjudication of the question of undervaluation and the court fee payable at the first instance. The operative portion of the order of remand passed by the first appellate court (Additional District Judge), is extracted below for reference:

(2.) The abovesaid direction issued by the first appellate court prima facie appears to be against the settled legal position governing the area. In fact, the first appellate court has committed a serious error by setting aside the decree and judgment of the trial court and by ordering remand for the purpose of fresh assessment of market value of property and for payment of deficit court fee. It is a suit for declaration of title and injunction. A counter claim was also raised in the suit. No issue was settled by the trial court for adjudication of deficiency of court fee or to ascertain the correctness of the valuation made in the suit. The allegation is that after the amendment of suit by incorporating substantial prayer for declaration, it was not valued for the purpose of court fee and no court fee was paid and it was noticed at the first appellate stage and hence, an order of remand was passed for that purpose.

(3.) The question of undervaluation of suit or the relief subsequently amended was not taken up or adjudicated at the trial stage either at the initial stage or at the final stage of the suit. Necessarily, it has to be ascertained that (1) whether it is permissible to take up the issue of undervaluation of suit and deficiency of court fee at the final stage of the suit and what would be the legal position, if it was not taken up and adjudicated as a preliminary issue before the court of first instance (2) whether the court of appeal can go into the said question of undervaluation or deficiency of court fee payable at the first instance (trial court) when an appeal comes before it against the decree and judgment of the trial court adjudicating the dispute inter se between the parties (3) what would be the jurisdiction of the court of appeal when it is found that the suit is undervalued and there is deficit court fee at the court of first instance (trial court) (4) when the appeal is against the decree and judgment adjudicating the respective right of parties, whether it is permissible to order remand of the matter for the determination of question of undervaluation and deficit court fee payable at the court of first instance and (5) what is the procedure to be applied by the first appellate court in that situation.