SHANKAR OJHA Vs. JOTIA

JUDGEMENT

(1.) This is an appeal under Section 6, U.P. Court fees Act filed by the defts. & it is directed against an order passed by the lower appellate Court dated 2-6-1948, directing the appellants to pay the court, fee on the valuation of the appeal.

(2.) It appears that a suit for maintenance was instituted by one Mt. Jotia against the defts.-appellants. She was allowed to sue in forma pauperis. She was successful in the Court of first instance. Against the decree passed by the Court of first instance, the appellants went up in appeal to the lower appellate Court. A question of the sufficiency of court-fee payable on the memorandum of appeal arose on the report of the Inspector of Stamps. The learned Judge, who was seised of the appeal, decided that the report of the Inspector of Stamps was correct. He accepted it and ordered the appellants to pay court fee according to the value of the appeal. Against the order of the learned Civil Judge, the appellants have now come up in appeal to this Court. At the time of decision of the appeal under Order 41, Rule 11, Civil P.C., the learned Judge, Bind Basni Prasad J. expressed some doubts about the correctness of the decision in Shambhu Singh v. Mt. Parmeshwara Kuar, F.A.F.O. 21 of 1947, decided on 13-4-1949, by Seth J. He accordingly directed that this appeal be listed before a Division Bench. The view taken by the learned Single Judge, Seth J, in the case of Shambhu Singh v. Mt. Permeshwara Kuar (ubi supra) is exactly the same as was expressed by him in the case of Chief Inspector of Stamps v. Brij Raj Singh, A.I.R. (37) 1950 ALL. 55. We shall deal with this case later in the course of this judgment.

(3.) We have heard learned counsel for the appellants in support of the appeal. Learned counsel has contended that the appellants could not be legally called upon to pay a higher court-fee than the amount of court fee payable by the plaintiff in the Court of first instance.