MOHANLAL Vs. SAUKHILAL

JUDGEMENT

(1.) Appellants have filed present appeal against order of remand dated 15-12-1997 by which learned lower appellate Court while remanding the matter has afforded an opportunity to the respondents to affix court-fee on counter-claim with certain observations. Learned trial Court has not considered the counter-claim only on the ground that the respondents have not paid court-fee on it.

(2.) Learned counsel appearing for the appellants submits that lower appellate Court committed an error in allowing respondents/defendants to pay the court-fee on counter-claim and wrongly exercised its power giving opportunity to the respondents to pay the court-fee and enlarged the scope. On the contrary, learned counsel for the respondents submits that the learned lower appellate Court has exercised its power under Order 41, Rule 33 of the Code of Civil Procedure and has done the justice in the case while affording opportunity to the respondents to pay the court-fee on counter-claim.

(3.) From perusal of the counter-claim which was filed alongwith the written statement, it appears that the respondents in para 10 have made the counter-claim and valued the counter-claim at 20 times of land revenue which comes to Rs. 50/- and court-fee was payable Rs. 5%. It appears that due to oversight aforesaid court-fee, which was a meagre was not paid. Learned trial Court has considered this aspect in para 6 of the judgment and has rejected the counter-claim only on the ground that the court-fee was not paid.