JOGINDER SINGH Vs. SANT KAUR

JUDGEMENT

(1.) This is an application filed by the appellant praying for issuance of a certificate authorising him to receive back from the Collector concerned full amount of the Court fee of Rs. 3,808/- affixed on the memorandum of appeal.

(2.) It has been stated in the application that inadvertently the applicant filed the regular first appeal, which has not even been numbered as yet. On the memorandum of appeal a court fee of Rs. 3,808/- has been fixed. The Court fee was cancelled by the Registry on 14.7.1998 and the applicant later on discovered that proper remedy was only by way of filing a writ petition against the order of the Land Acquisition Tribunal, Improvement Trust, Ludhiana. The appellant has already filed Civil Writ Petition No. 11344 of 1998, in which notice of motion has been issued to the respondents. Consequently, the appellant prays for issuance of appropriate certificate.

(3.) Learned Counsel for the appellant has relied upon Section 13 of the Court Fee's Act, 1870 read with Rule 3 of Part-A, Chapter 4 in Volume-IV of the Rules and Orders of the Punjab and Haryana High Court for claiming such a relief. According to the learned Counsel for the appellant, the appellant is entitled to refund the entire court fee because the appeal is not maintainable, respondents have not been summoned and this would not in any way prejudice the interest of any party. I am willing to accept the contention raised on behalf of the applicant-appellant. A regular first appeal was not maintainable, as the original decree was not passed by the civil court which could give rise to a regular first appeal. The appellant has already filed civil writ petition, on which notice of motion has been issued by the Division Bench of this Court. Consequently, it may be construed that the appeal itself is not maintainable. Neither notice has been issued in the appeal nor the appeal itself has been registered as such, resultantly I would direct the Registry to issue certificate in favour of the appellant, as prayed for, in accordance with rules. The appeal does not survive for consideration.