MUNSHI Vs. GIANI

JUDGEMENT

(1.) The learned trial Judge while dismissing the suit of the plaintiff, who is the applicant in this revision application, on December, 31, 1965, had added this note at the end of his judgment "The decree sheet shall not be drawn until the plaintiff makes up the deficiency in court fee at the value of Rs. 4,000/ - and applies to the Court for preparing the decree -sheet". The Learned Counsel for the plaintiff complains that this almost bars the plaintiff from going in appeal, because he is being compelled at the time of the final disposal of the suit not to have a decree in the suit, from which he can appeal, unless he pays up the court fee on the amount stated by the learned Judge.

(2.) The matter of court -fee should have been decided by the learned Judge in the very beginning and the plaintiff should have been called upon to make up the deficiency, if any, in the court -tee payable, failing which his suit could have been dismissed straightway. But having heard the claim of the plaintiff on merits and having dismissed it, it is practically putting a bar to the plaintiff to appeal against the decree dismissing his suit when a decree is not to be prepared unless he makes up the deficiency in court -fee. Apparently the order is, to say the least, improper and not justified. The Learned Counsel for the plaintiff refers to Wailaiti Ram v/s. Gopi Ram : A.I.R. 1935 Lah. 75 in which Tek Chand, J. set aside such an order by the Court below and directed that, if the court fee had been paid, it be refunded. On the side of the defendant reference is made to Mohan Lal v/s. Nand Kishore, (1905) 28 All. 210 which is a decision of a Full Bench of the Allahabad High Court, but that was a case in which although deficiency in court fee in the lower appellate Court was discovered when there was a appeal in the High Court, but the appellant in the lower appellate second Court had failed to make good the deficiency in the court fee even on having been called upon to do so. This is exactly what has not happened in the present case. The position would have been parallel if the learned trial Judge had decided the question of the deficiency of court fee in the beginning, given and opportunity to the plaintiff to make up the deficiency, and then he had failed to do so. In any event, I am bound by the decision in Wailaiti Ram's case.

(3.) So this revision application of the plaintiff is accepted and the last line in the judgment of the trial Judge, as already reproduced above, calling upon the plaintiff to make up deficiency in court -fee before decree is to be prepared in his suit, are deleted Obviously the deletion means that now the Court will proceed to prepare the decree and then the plaintiff can have, if so advised such recourse to appeal or otherwise as suits his interests. There is no order in regard to costs in this application.