GURMAIL SINGH (DIED) Vs. BALWINDER SINGH AND ORS.

JUDGEMENT

(1.) Plaintiff is in revision petition aggrieved against the order passed by the learned first Appellate Court on 1.12.1989 whereby the application for extension of time for fixing court fee of Rs.20/ - on the memorandum of appeal was declined.

(2.) The suit for declaration to the effect that the plaintiffs are owners in possession of half share of the land was dismissed by the learned Trial Court on 11.5.1989. The appeal against the said judgment was filed within a period of limitation which was required to be accompanied with a court fee of Rs.19.50p. When the appeal came up for hearing before the Court on 17.7.1989, the appellants were directed to make good the deficiency of court fee within 3 days and the notice was issued to the parties for 23.8.1989. It is the case of the petitioners that they had given Rs. 20/ - to their counsel Shri Lokesh Puri to make good the deficiency in court fee but the same was not affixed. It was only on 23.8.1989, they found that the court fee which was given to their counsel has not been affixed on the memorandum of appeal. In these circumstances, the petitioner prayed for extension of time in depositing the court fee. Learned first Appellate Court declined such application vide order impugned in the present revision petition primarily on the ground that no affidavit of the lawyer or his clerk has been filed to show that the amount of Rs. 20/ - was paid by the appellants to make good the deficiency in court fee.

(3.) The plaintiffs have contested the suit for almost 4 years before it was dismissed on 11.5.1989. The appeal was filed within the period of limitation. There is nothing on record to show that a meager amount of Rs. 20/ - would not be deposited by the petitioners on the memorandum of appeal. Such deficiency in court fee has to be for the reason other than the bona fides of the petitioners. The reasoning given by the learned First Appellate Court that the affidavit of neither the counsel nor his clerk has been filed is wholly unjustified. It is the case of the plaintiffs that the amount of court fee was paid to the lawyer but the same was not affixed. I do not find any reason to disbelieve such stand of the petitioners as the amount of court fee is meager i.e. only Rs. 20/ -. I do not find any lack of bona fide on the part of the petitioners, to prosecute the appeal. The delay of few days in making the deficiency in the Court fee is not such which could disentitle the plaintiff from enforcing his legal rights.