GORDHAN Vs. PARASMAL

JUDGEMENT

(1.) This is an appeal by the defendant against an order of remand passed by the Additional District Judge No. 1, Jodhpur whereby the case was remanded for trial in accordance with law to the trial court. The relevant facts of the case are that the plaintiff -respondents presented a plaint for the recovery of Rs. 1768/ - against the defendant -appellant on 21 -9 -1972 in the court of Munsif, Bilara. The plaint was not properly stamped. The plaintiffs therefore, moved an application with the plaint praying that 7 days time be granted to them for submitting the requisite court fee. The court allowed this application and directed the plaintiffs to pay the court fee on or before seven days. The court fee was submitted on September 30, 1972, i.e., after the expiry of the period of seven days granted by the court The plaintiffs did not ask for any extension of time nor was any specific order passed by the court for extension. The court, however, accepted the court fee on September 30, 1972 and ordered that the suit may be registered. On 9 -11 -73 the defendant put forward an objection that since the plaintiffs had not submitted the court fee within the time allowed by the court, the plaint be rejected The defendant -appellant also urged that the plaint was submitted only one day before the expiry of the period of limitation, and since the plaintiffs have failed to submit court fee within the time allowed, the suit had become time barred. The learned Munsif after hearing arguments of the parties came to the conclusion that the plaint be deemed to have been find without court fee. He, accordingly, rejected the plaint under Order 7 rule 11(3) of the Code of Civil Procedure. Dis -satisfied with the said order of the learned Munsif, the plaintiffs preferred an appeal which was heard by Additional District Judge No. 1, Jodhpur. He set a side the order of the trial court on the ground that since the trial court accepted the court fee and thereafter registered the case it will be deemed to have impliedly condoned the delay and extended the time. Consequently he allowed the appeal, set aside the order of the learned Munsif and sent the case back to the trial court for decision on merits in accordance with law.

(2.) I have heard learned counsel for the parties and gone through the record of the case. The question which calls for determination in this case is whether the delay in filing the deficit court fee after the period of limitation can be deemed to have been condoned on the ground that the trial court accepted the deficit court fee after the period allowed by the court and registered the plaint. This very question arose in Amor Singh vs. Chaturbhuj (AIR 1957 Raj 367 :, 1957 RLW 354 :, ILR 1957 Raj 460), Hon'ble Justice I.N. Modi after review of several authorities observed.