DULHIN MAHESARI DEVI Vs. DULHIN JAHARI DEVI

JUDGEMENT

(1.) The question for consideration is whether the plaintiff-appellant, after the dismissal of her appeal for non-payment of the deficit court-fee in respect of the memorandum of appeal, can be directed to pay the deficit court-fee in respect of the plaint filed by her.

(2.) It appears that the plaintiff instituted, what she called a suit for partition, pure and simple, and paid court-fee on this basis in the trial Court. The suit was dismissed. Thereafter she appealed to this Court. The stamp reporter reported that the suit was really a title suit in the garb of a partition suit and ad valorem court-fee was, therefore, payable in the trial Court as also in this Court. On that basis this Court passed an order on the 26th September, 1974, by which it granted three months' time to the appellant to pay the deficit court-fee on the memorandum of appeal, failing which the memorandum of appeal was to stand rejected without further reference to a Bench. The same time was also allowed to pay the deficit court-fee in respect of the plaint, failing which the question of rejection of the plaint and recovery of the deficit court-fee thereon was to be considered. It appears that the deficit court-fee in respect of the memorandum of appeal was not paid within the time allowed and, therefore, the memorandum of appeal stood rejected. The question of rejection of the plaint and recovery of the deficit court-fee has been referred to us for orders.

(3.) We are of the opinion that in view of the fact that the appeal itself stood dismissed, this Court has become functus officio and it is not open to us to pass any order, whether it be in respect of the rejection of the plaint or in respect of the recovery of the deficit court-fee. We have considered the effect of Sections 10 (ii) and 12 (ii) of the Court Fees Act, 1870 (hereinafter called the 'Act') to which our attention was drawn. Section 12 (ii) of the Act provides that whether a suit comes before a Court of appeal, reference or revision, if such Court considers that the said question has been wrongly decided, to the detriment of the revenue, it shall require the party by whom such fee has been paid to pay so much additional fee as would have been payable had the question been rightly decided. It further provides that the provisions of Section 10, paragraph (ii), shall apply in such a case. Section 10, paragraph (ii), provides that in such case the suit shall be stayed until the additional fee is paid, and if the additional fee is not paid within such time as the Court shall fix, the suit shall be dismissed. A reading of these two provisions makes it clear beyond doubt that it relates to a period during which the appeal, reference or revision, in course of which the Court takes cognizance of the deficiency in court-fee, is pending. There is no question of staying a suit or an appeal after it has been dismissed- There is no further question of dismissing an appeal which has already been dismissed, Paragraph (ii) of Section 12 does not, therefore, answer the question, which has been posed before us.