CHANDRIKA PRASAD SHANKAR DUTT Vs. KANCHAN SHIVBHUJAN

JUDGEMENT

(1.) THIS revision by the defendants is directed against an order passed by the Additional District Judge, Rewa, on 18th March 1977, by which their appeal was dismissed for non-payment of court-fees

(2.) ON 21st July 1973, the Additional District Judge remitted an issue relating to proper valuation of the suit to the trial Court. The trial Court decided that the valuation of the suit ought to be Rs. 34,770 on which rs. 2575 were payable as court-fee. The plaintiffs had not paid the full court-fee in the trial Court. Similarly, the defendants had not paid full court fee on the memo of appeal. The Additional District Judge decided the question as to who should pay the court-fee on the plaint and memorandum of appeal by his order dated 15th March 1977. Following the views of the bombay and Patna High Courts in Alabux v. Abdullalli ( A I R 1942 Bom. 151.) and Sita Ramji v. Moti Prasad, (A, I R-,1973 Pat. 439.) the Additional District Judge came to the conclusion that the plaintiffs should be first directed to pay the deficit court-fee on the plaint and, in case they did not pay the deficit, it would be for the defendants to pay the deficit court-fee on the. plaint as also on the memo of appeal. The Additional district Judge, after- recording the aforesaid finding, directed the plaintiffs to pay the deficit court-fee on the plaint within seven days and stayed the hearing of the appeal Curiously enough, the Additional District Judge before the expiry of seven days dismissed the appeal on 18th March 1977 on the ground that the defendants did not pay the deficit court-fee on the memo of appear and the plaint. This order was passed under section 10 (ii) read with section 12 (ii) of the Court Fees Act. It is against this order that the present revision has been filed.

(3.) SECTION 12 (ii) of the Court Fees Act provides that whenever any suit comes before a Court of appeal and if such Court considers that the question as to court-fee has been wrongly decided by the trial Court to the detriment of the revenue, it shall require the party by whom such fee has been paid to pay so much additional fee as would have been payable had the question been rightly decided. This section further provides that in such a situation the provisions of section 10 Paragraph (ii) shall apply. Section 10, paragraph (ii) says that the suit shall be stayed until the additional fee is paid. It further says that if the additional fee is not paid within such time as the court shall fix, the suit shall be dismissed. Section 12 (ii) authorises the court to require the party by whom the deficient fee has been paid to pay the additional lee as would have been paid had the question of court-fee been rightly decided. In other words, this provision only authorises the Court to demand the additional court-fee payable on the plaint from the plaintiff and from no one else. The section does not say that if the plaintiff respondents in appeal does not pay the additional court-fee payable on the plaint, the court will have jurisdiction to demand the same from the defendant appellant. The defendant-appellant is responsible for payment of court-fee only on the memo of appeal and any deficit court-fee on memo of appeal can be demanded from him. But he is not responsible for payment of deficit court-fee on the plaint. Indeed, it would be very hard to call upon the defendant-appellant to pay the deficit court fee on the plaint and to dismiss the appeal in case he does not pay it. The deficit court-fee on the plaint may be a large amount and it may not be possible for the defendant-appellant to pay it. It may result in a grave injustice to the defendant-appellant if such an interpretation is put upon section 12 (ii ). This view was taken by the Allahabad High court in Namin Singh v. Chaturbhuj Singh, (IL R 20 All. 362 ). Narain Singh's case was later approved by a Full Bench of the Allahabad High Court in Mohan Lal v. Nand Kishore, (I L R 28 Ail. 270. ).