STATE OF RAJASTHAN Vs. LALITA DEVI

JUDGEMENT

(1.) THIS is a joint petition in revision by the State of Rajasthan and the Urban Improvement Trust, Udaipur against the order dated August 24, 1979 of the learned District Judge, Udaipur passed in Civil Misc. Appeal No. 47 of 1977.

(2.) THE facts giving rise to this revision petition lie in a very narrow compass. Respondents Smt. Lalita Devi and Shri Shantilal, who are wife and husband respectively, owned certain land situated in the city of Udaipur. THE) acquisition proceedings were initiated for acquisition of the land by the State, After completing the acquisition proceedings, an award in the sum of Rs. 36428/- was made as compensation in favour of the respondents. Aggrieved by this award, the respondents preferred an appeal under section 54 of the Rajas-than Urban Improvement Act (No 35 of 1959) (for short 'the Act' hereafter) for enhancing the quantum of compensation awarded to them. THEy claimed Rs. 96, 625/-, That appeal was filed by the respondents on a court-fee stamp of Rs. l/ -. An objection was taken on behalf of the State that the memorandum of appeal does not bear sufficient court-fee inasmuch as the respondents should have paid court-fee on the difference of the amount awarded and the amount claimed as required by section 46 of the Rajasthan Court-Fees and Suits-Valuation Act (No. 23 of 1961) (hereinafter to be called as 'the Act of 1961' ). After appreciating the arguments advanced on behalf of the parties, the learned District Judge, by his order dated August 24, 1979 held that the decision given by the Additional Collector is appealable on a fixed court-fee stamp and that the respondents (appellants before the learned District Judge) need not pay extra court-fee. In view of this, the objection raised on behalf of the State regarding deficiency of court-fee and that the court-fee was payable under section 46 of the Act of 1961 were rejected. He ordered that the appeal may be fixed for final arguments. Aggrieved, the State of Rajasthan and the Urban Improvement Trust, Udaipur have filed this revision petition under section 115 of the Code of Civil Procedure.

(3.) SUB-section (4) (a) of Section 11 of the Act of 1961 provides that in appeal, a Court of appeal, either of its own motion or on the application of any of the parties shall correct any order passed by the lower court on the question of the payment of the court-fee payable on the plaint or written statement or in any other proceedings in the lower court and determining the proper fee payable thereon. Section 11 (4) (b) lays down that if the Court of Appeal decides that the fee paid in the lower Courts is not sufficient, the Court shall require the party liable to pay the deficit fee within such time as may be fixed by it. SUBsection (4) (c) of section 11 says that if the deficit fee is not paid within the time fixed and the default is in respect of a relief which has been dismissed by the lower Court and which the appellant seeks in appeal, the appeal shall be dismissed, but if the default is in respect of a relief which has been decreed by the lower Court, the deficit fee shall be recoverable as if it were an arrear of land revenue. Section 11 (4) (d) of the Act empowers the appellate court to direct the refund of the excess amount of court-fee to the party entitled thereof, if the court fee paid in the lower court is in excess. As stated above, the learned District Judge has held that the court fee paid on the memorandum of appeal by respondents No. 1 and 2 is adequate on the ground that the award was appealable on a fixed court-fee stamp. He, therefore, directed that the respondents need not pay extra court-fee.