MUNICIPAL CORPORATION, FARIDABAD Vs. SURESH

JUDGEMENT

(1.) THE present revision petition has been filed against the order dated 11.11.2003 passed by the learned Addl. District Judge, Faridabad vide which application moved by the defendant-petitioners for making good the deficiency in court fee has been rejected and one filed by the plaintiff-respondents for rejection of the appeal of the defendants- petitioners was accepted.

(2.) THE petitioners have challenged the judgment and decree passed by the learned Civil Judge (Jr. Divn.), Faridabad before the learned Addl. District Judge, Faridabad. The appeal filed was not properly assessed for the purposes of Court-fee. This led to the respondent-plaintiff to file the application dated 3.3.2003 for rejection of the appeal. During the pendency of the said application, the petitioners moved another application dated 7.11.2003 for making good the deficiency in Court Fee. The reason moving the said application was that the court-fees was affixed as per the decree-sheet prepared by the learned trial Court and the petitioners were not aware of the fact that subsequently deficiency in court-fee had been made good as per the directions of the learned trial Court and accordingly the court-fees payable on appeal was Rs. 12,370/-, which was not affixed by the petitioners at the time of filing of the appeal. The petitioner has sought enlargement of time under Sections 148, 149 read with Section 151 of the Code of Civil Procedure. In that application provisions of Order 7 Rule 11 CPC were also invoked. The learned Addl. District Judge, Faridabad rejected the application made by the petitioners in view of the law laid down by the Full Bench of this Court in the case of Raj Kumar alias Prithvi Singh and another v. Amar Singh and others, 1980(2) ILR 463 (P&H). In the said judgment the Hon'ble Full Bench was pleased to hold that the provisions of Order 7 Rule 11 CPC are not applicable to the appeal and, therefore, it is always open to the appellate Court to reject the appeal straightaway without giving opportunity to the appellant to make good the deficiency in the court-fees.

(3.) IN view of what has been stated above, the finding of the learned lower appellate Court that it had no discretion to extend the time to make good the deficiency in court-fee cannot be sustained. It has to be further noticed that extension of time to make good the court-fee is discretion with the Court and normally the exercise of discretion is not to be interfered in exercise of revisional jurisdiction, however, in the present case keeping in view the fact that that the respondent has fairly conceded that the petitioner be granted one opportunity to make good the deficiency of court-fee and furthermore the extension in time would only result in deciding the case on merit.