KARAN SINGH Vs. BHAGMAL

JUDGEMENT

(1.) SUIT for specific performance of contract filed by appellant herein, was dismissed by learned Civil Judge (Junior division), Gurgaon vide judgment dated 30-5-2005. While filing an appeal against the same, the appellant did not pay the requisite Court-fee and, instead, mentioned in para 9 of the memorandum of appeal that he be granted time for paying the Court-fee on the ground that his son was patient of cancer and was under treatment on which he had spent a huge amount. He did not file any separate application under Section 148 of the Code of Civil Procedure (for short 'the code') for enlargement of time for paying the court fee or under Section 149 of the Code to make up the deficiency of Court-fee. He remained contented with having made specific mention in para 9 of the memorandum of appeal so as to seek the grant of time for doing the same. However, it was reported by Superintendent of first appellate Court that the Court-fee was correct. The appeal was, accordingly, admitted on 2-8-2005. On 11-8-2006, it was brought to the notice of lower appellate Court for the first time when the said Court insisted for advancing arguments that proper Court-fee had not been affixed. At that stage, learned counsel for the appellant requested for time for affixing court-fee, while learned counsel for respondent No. 2 objected to it on the ground that the appeal had become time barred.

(2.) LEARNED lower appellate Court did not grant the permission to the appellant to make up the deficiency of Court-fee and proceeded to reject the appeal on that ground alone vide its impugned judgment dated 17-8-2006. Aggrieved of the same, the appellant filed the present second appeal in this court under Section 100 of the Code.

(3.) AFTER issuance of notice of motion, only respondent No. 2 put in appearance through his counsel for opposing the appeal. Respondent No. 1 had been served but no one put in appearance on her behalf. Even before the learned lower appellate Court, it was respondent No. 2, who had objected to appeal on the ground of having been filed without affixing the Court fee, whereas respondent no. 1 was proceeded ex parte.