SUBASH CHAND AND ANR Vs. KALAWATI AND ORS

JUDGEMENT

(1.) This is an application under Section 115 of the Code of Code of Civil Procedure against an order dated 16-10-1950 passed by the Civil Judge of Dehra Dun by which he held that the court had power, in the present case, to extend the period during which the plaint was to be amended and the court-fee was to be paid and the suit cannot be said to have been rejected automatically because something was not done within 15 days of the 19th July, 1950.

(2.) The facts are these. On 19-7-1950, an issue was decided by the court regarding the suit having been undervalued and court-fee paid insufficient. The Court held that upon statement made jointly by the parties for purposes of this case the value of the house in dispute is to be taken at Rs. 20,000 while that of the grove and the quarters in it be taken at Rs. 40,000 and that the total valuation of the suit for purposes of the court-fee should, therefore, be taken at Rs. 60,000 for the relief of possession and at Rs. 4,500 for the relief of mesne profits. After arriving at that finding the court ordered that the Plaintiff should amend valuation of the plaint and pay the necessary court-fee within 15 days; and if this is done the suit will proceed for the decision of the other issues, and in case of default the plaint shall be rejected with costs to the Defendants. On 20-7-1950, an application for amendment was moved which was allowed. The Munsarim reported on 25-7-1950, about certain defects in the plaint and the Plaintiff was required to remove them by the 3-8-1950. Again an application was made by the Plaintiff on 4-8-1950, in respect to this matter and it was ordered that the relief about the future and pendente lite mesne profits should also be valued. The Plaintiff then prayed for time to get further amendment made and his application was allowed. This further amendment was made on 11-8-1950. The Munsarim again made a report and said that there was still some deficiency in court-fee. The Plaintiff was ordered to make good the deficiency by the 31-8-1950. The Plaintiff's counsel contested that report and ultimately the necessary court-fee was paid on 7-9-1950. On 16-11-1950, when the case came up for final hearing the Defendants contended that as the court-fee was not paid within 15 days from 19-7-1950 the plaint must be deemed to have been rejected and that the court had no jurisdiction to extend the time. The court below relying upon a decision in Mukand Lal v. Gopal Das, 1950 AIR(All) 536 came to the conclusion that having regard to the circumstances of the present case time could have been extended.

(3.) The relevant provision applicable to the case is to be found in Section 149 Code of Code of Civil Procedure read with Order 7, Rule 11 of the Code and Section 6 of the Court Fees Act. Section 149 has to be read as a proviso to Section 6 of the Court Fees Act in order to avoid contradiction between the two sections. As a result of reading the two sections together in this light the law may be taken thus: