DHANSINGH Vs. TAKHATSINGH

JUDGEMENT

(1.) THIS is plaintiff's second appeal directed against the judgment and decree of the Additional Civil Judge, Udaipur, dated August 27, 1977 by which he affirmed the order of rejection of plaint under Order VII Rule 11, CPU, passed by Munsif, Salumbar, on August 31, 1976.

(2.) THE facts giving rise to this appeal may be briefly noticed. Dhan -Singh plaintiff appellant engaged Shri Govind Lal Dangi as his advocate in the trial court. The suit was fir the recovery of Rs, 3250/ -. Shri Dangi Advocate presented the above suit in the court of Munsif Salumbar on August 14, 1976 on court -fee stamps of Rs. 200/ -. According to the report made by the office of the Munif Court on August 16, 1976, the court -fee was de6cit by Rs. 10/. On August 16, 1976 it was ordered be the Munsif that the counsel for the plaintiff may be asked to mike up the deficiency within a week The advocate of the plaintiff affixed a Court -fee stamp of Rs. 10/ - on the plaint on August 23, 1976 and wrote a note in his handwriting or the margin that. Below this, he put his own signature and the date as August 23, 1976. It is admitted on behalf of the plaintiff -appellant that formerly, learned advocate Shri Dingi wrote 26 -8 -1976 below the signature but at that very time, the figure of date 26 was changed to 23. In other words, the figure of 6 in the date below the signature was changed to 23. After the making up of the deficiency in court -fee on August 23, 1976, the clerk concerned reported of the same day that the deficiency in the court fee has been made up and the suit may be registered as Civil Original He also put the date after this writing. The report nude by the concerned clerk after making up of the deficiency rum as under: This report of the concerned clerk was signed by the Munsif on August 27, 1976. Subsequently, learned Advocate Shri Dangi received a notice from the court of Munsif Salumbar on August 28, 1976 informing him that August 31, 1976 has been fixed as the date of hearing regarding deficiency in court -fee On August 31, 1976, the said advocate submitted this he had already made up the deficiency in Court fee on August 23, 1976 and that the same is clearly borne out from the note to that effect written by the clerk concerned. The learned Munsif did not accept the submission made on behalf of the plaintiff that the deficiency in court fee was made good on August 23, 1976 and consequently, rejected the plaint under Order VII Rule 11, CPC, vide his order dated August 31. 1976, the date fixed for making up the deficiency. He was of the opinion that the deficiency was not made up on August 23, 1976, but it was made good on on August 26, 1976.

(3.) LEARNED Counsel for the respondents did not dispute the fact? mentioned above leading to this appeal. He has further not disputed that the deficit court fee of Rs. 10/ - was made good on August 23, 1976 as according to him it is amply borne out from the note put by Shri Govind Lal Daugi Advocate on August 23, 1976 and the report of the clerk concerned of the same date that deficiency in the court, for has been made up.