BHAGGAN Vs. AZAM KHAN AND ORS

JUDGEMENT

(1.) This is an application Under Section 115 of the Code of Civil Procedure arising out of an application made Under Section 12 of the UP Agriculturists' Relief Act. The property in dispute consists of six agricultural plots which were at one time usufructuarily mortgaged by one Abdul Ghafoor to one Nanhu Shah for a sum of Rs. 600/-. This was done on 5-5-1932. On 26-9-1936 Abdul Ghafoor sold the mortgaged property to one Azam Khan. Abdul Ghafoor died leaving opposite parties Nos. 3 to 6 as his legal representatives. Azam Khan the transferee from Abdul Ghafoor mortgagor then applied for redemption of the mortgage Under Section 12 of the UP Agriculturists' Relief Act. He impleaded not only Nanhu Shah as an opposite party but also impleaded Bhaggan applicant as a transferee from Nanhu Shah who claimed to be entitled to possession but who was also liable to deliver possession to Azam Khan the original applicant in the application made Under Section 12 of the UP Agriculturists' Relief Act. The mortgagee contested the suit but we are not concerned, with his defence. Bhaggan defended the suit on the ground that as he was a hereditary tenant of the plots in suit having been admitted to tenancy by Nanhu Shah, and as such was not liable to be ejected. The trial court framed an issue whether Defendant No. 2, that is Bhaggan (applicant) was a hereditary tenant of the plots in suit as alleged and sent the issue to the revenue court for decision. The revenue court returned the finding that Bhaggan was not the tenant of the plots in dispute. The civil court thereupon passed a preliminary decree for redemption in favour of Azam Khan not only against the mortgagee but also against Bhaggan applicant on payment of Rs. 600/- the mortgage money. The mortgagee appears to have submitted to the decree but Bhaggan filed an appeal. He headed the appeal as one Under Section 96 of the Code of Civil Procedure and valued it as Rs. 9/- which was the annual rent and paid ad valorem court fee on that amount. The learned Civil Judge, before whom the appeal came up for decision, dismissed the appeal on the technical ground that the appeal should have been Under Section 23 of the UP Agriculturists' Relief Act and not one Under Section 96 of the Code of Civil Procedure and that court fee paid on the memorandum of appeal was deficient and ad valorem court fee should have been paid on the mortgage money Under Article I of Schedule I of the Court Fees Act. He did not give the applicant any opportunity to make good the deficiency. Against this decree Bhaggan has applied to this Court for revision of the order of the court below.

(2.) The first point that has to be decided is whether the court fee paid on the memorandum of appeal was insufficient. It is undoubtedly true that an appeal against the decree passed by the trial court lay Under Section 23 of the UP Agriculturists' Relief Act and should not have been headed as an appeal Under Section 96 of the Code of Civil Procedure. But this was a mere clerical error which could have been very easily allowed to be corrected by the court. All that was required to be done was that Section 23 of the Agriculturists' Relief Act was to be substituted in place of Section 96 of the Code of Civil Procedure.

(3.) The main question, however, \was whether the court fee paid on the memorandum of appeal was sufficient or insufficient. The court fee payable on a memorandum of appeal filed Under Section 23 of the UP Agriculturists' Relief Act is provided for Under Article 2B of Schedule I of the Court Fees Act. This Article lays down that the same fee is payable as would be leviable on a memorandum of appeal Under Article I. Article I lays down that the court fee payable on a plaint, written statement, pleading a set off or counter-claim or memorandum of appeal (not otherwise provided for in this Act) presented to any Civil or Revenue Court except those mentioned in Section 3 shall be, when the amount or value of the subject-matter in dispute does not exceed Rs. 5 annas eight and also when such amount or value exceeds five rupees, for every five rupees, or part there of, in excess of five rupees, up to one hundred rupees annas eight.