SHAH DHARAMCHAND Vs. SHAH PUNAMCHAND

JUDGEMENT

(1.) THE question that arises in this case is whether the memorandum of appeal is sufficiently stamped. It appears that the appellant filed a suit to recover a sum of Rs. 10,000/- as damages for malicious prosecution. THE plaint of that suit has been rejected by the Civil Judge, Sirohi under Order VII Rule 11 (a) of the Code of Civil Procedure. THE plaintiff has come up in appeal to this Court and has valued the memorandum of appeal at Rs. 10,000/- but he has paid only Rs. 2/- as court-fee. THE office report is that the memorandum of appeal should have been stamped with a court-fee of Rs. 475/ -. THE appellant was asked to make good the deficiency and he has objected that the memorandum of appeal is sufficiently stamped.

(2.) RELIANCE was placed on behalf of appellant on Schedule II Art. 1 of the Court Fees Act which provides for a fixed court-fee in case of memorandum of appeal when the appeal is not from a decree or an order having the force of a decree. We are clearly of opinion that the present case is not covered by Sehedule II Art. II. The order in the present case, under sec. 2 (2) of the Code of Civil Procedure, is deemed to be a decree. Under these circumstances, even if the rejection of the plaint is treated merely as an order, it must be deemed to have the force of a decree and would not be covered by Schedule II Art. II Learned counsel was not able to point out a single case where a memorandum of appeal from an order rejecting the plaint under Order VII Rule 11 was treated as coming under Schedule II Art. 11. In particular, he referred to Apparao Sheshrao Deshmukh vs. Mat, Bhagubai w\o Yeshwantrao Deshmukh and others (A I. R. 1949 Nag. 1) which is a Full Bench Decision. In that case, the plaint was rejected under Order VII Rule 11 because deficiency in court-fee had not been made good. The learned Judges held that the case was covered by Schedule I, Art. I and ad valorem court-fee had to be paid. They went on further to hold what should be the valuation of the memorandum of appeal in cases of that kind. We are not concerned here with a case where the plaint has been rejected on the ground of deficiency in court-fee not having been made good and do not express any opinion on the question as to how a memorandum of appeal in such a case should be valued. But this decision clearly shows that appeals from orders rejecting plaints under Order VII, Rule II are covered by Schedule I Art. I of the Court-f:es Act and not by Schedule II Art. II as contended on behalf of the appellant.