RAMA SAINI Vs. GURBAX RAI

JUDGEMENT

(1.) Rama Saini and another filed a suit for partition of 3/8th share in the property and for permanent injunction restraining defendant No. 1 to sell the same. Details of the properties is as under:

(2.) Suit was resisted by the defendants and the trial Court by judgment and decree dated 19.9.1992 dismissed the same with costs. It may be noticed here that one of the issues framed in the suit is to the following effect: "Whether the suit is properly valued for the purpose of Court fee and jurisdiction?" OPP

(3.) The trial Court under this issue came to the conclusion that the suit was not properly valued for the purpose of Court Fee and jurisdiction and consequently decided the said issue against the plaintiffs after observing the valua of the properties is more than Rs. four lacs and the plaintiffs could have paid court fee at ad valorem value of the said properties. The plaintiffs aggrieved by the judgment and decree of the trial Court filed appeal before the District Judge. The District Judge by his order dated 16.2.1993 came to the conclusion that the appellants could not be permitted to urge that decision of the trial Court on issue No. 1 was wrong unless a proper memorandum of appeal is filed and court fee as per the decision of the lower Court on issue No. 1 is affixed on the memorandum of appeal. In this situation it was held that court fee affixed on the memorandum of appeal was deficient and the appellants were granted an opportunity in exercise of power under Section 149 of the Code of Civil Procedure (for short the Code), to make good deficiency in court fee on the memorandum of appeal. It was further directed that on failure of the appellants to make good the deficiency of court fee on the memorandum of appeal it shall be liable to be rejected under Order 41, Rule 3 of the Code. Deficiency of court fee on the memorandum of appeal was not made good in terms of the order dated 16.2.1993. An application for extension of time was moved but learned District Judge on a consideration of the matter came to the conclusion that court fee on memorandum of appeal being deficient and there being no proper memorandum of appeal, the appeal is liable to be rejected under Order 41, Rule 3 read with Order 7 and Rule 11 and Section 107 of the Code and he ordered accordingly. Decree sheet was ordered to be drawn.