SWARAN SINGH Vs. MUNISH MAHAJAN

JUDGEMENT

(1.) Present revision petition has been preferred under Article 227 of the Constitution of India for setting aside the order dtd. 9/5/2017 (Annexure P-8) vide which an application filed by the respondents for restoration of the appeal, which was dismissed vide order dtd. 23/4/2013 for non-furnishing of the requisite court fees, has been allowed.

(2.) The brief facts relevant to the present /fs are that a suit for specific performance and possession was filed by the plaintiff-respondents on 20/2/2004. On 24/5/2004 the written statement was filed by the defendant-petitioners herein and a statement was made that they were ready to execute the sale deed. However, the sale deed was not executed on account of various issues raised by the plaintiff-respondents themselves. Taking into account all the said factors as well as pleadings and the evidence on the record, the suit was dismissed by the Trial Court vide judgment and decree dtd. 28/7/2012. An appeal was preferred by the plaintiff- respondents on 10/10/2012, however, no court fees was affixed on the memorandum of appeal. The memorandum of appeal was not accompanied by any application for exemption from filing the court fees. On 22/1/2013 an application (Annexure P-1) for extension of time for depositing the requisite court fees was filed. A reply to the said application was filed by the defendant-petitioners herein and they also filed an application for rejection of the memorandum of appeal on the ground that no court fees has been affixed. A reply to the application was filed by the plaintiff-respondents herein. Vide order dtd. 21/3/2013 the application for extension of time for deposit of the court fees was allowed and the application filed by the defendant-petitioners herein for rejection of the memorandum of appeal was dismissed. The plaintiff-respondents herein were given one months' time from the date of the passing of order dtd. 21/3/2013 to affix the court fees on the memorandum of appeal. Since the court fees was not affixed as directed vide order dtd. 21/3/2013, the appeal itself stood rejected on 23/4/2013 (Annexure P-5). Subsequently, on 1/7/2013 an application was filed by the plaintiff-respondents for restoration of the appeal. The defendant-petitioners contested the said application and filed a reply. However, the said application was allowed and the appeal of the plaintiff- respondents was restored vide the impugned order dtd. 9/5/2017 (Annexure P-8). Hence, the present revision petition by the defendant- petitioners.

(3.) Learned counsel for the defendant-petitioners would contend that once time was granted for affixing the deficit court fees and the same was not complied with, thereafter, any application filed for restoration of the appeal could not have been entertained. Learned counsel for the defendant- petitioners has relied upon a judgment of a Division Bench of this Court in the case of M/s. Ajey Taxtile & Ors. vs. The British India Corporation & Ors. [1970(2) ILR Punjab 127] to contend that once the court fees was not affixed and the memorandum of appeal was insufficiently stamped the First Appellate Court was not bound to give time to the appellant to make good the deficiency in the court fees and here in the present case despite time having been granted the court fees was not affixed and hence, the restoration itself could not have been ordered. Further reliance has been placed upon the judgment of a Division Bench of this Court in the case of Jabar Singh deceased represented by his Legal Representatives vs. Shadi deceased represented by his Legal Representatives [1978 PLR 681] on the proposition that no opportunity to make good the deficiency in the court fee is called for in an appeal. Further reliance has been placed on the judgment of a Full Bench of this Court in the case of Raj Kumar Alias Prithvi Singh vs. Amar Singh & Ors. [AIR 1981 Punjab 1] also on the proposition that the First Appellate Court is not bound to call upon the appellants to make good the deficiency in the court fees and could straightway reject an appeal.