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Hanumappa and anr. Vs. Assistant Commissioner and Land Acquisition Officer - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberMisc. First Appeal No. 131 of 1981
Judge
Reported inAIR1985Kant276
ActsCode of Civil Procedure (CPC), 1908 - Sections 151 - Order 47, Rule I
AppellantHanumappa and anr.
RespondentAssistant Commissioner and Land Acquisition Officer
Appellant AdvocateM. Rama Bhat, Adv.
Respondent AdvocateC.S. Kothavale, Adv.
Excerpt:
- code of civil procedure, 1908. order 6 rule 17: [a.n. venugopala gowda, j] amendment of written statement amendment seeking the defence on the ground that the previous advocate colluded with the other side rejection of held, amendment should be necessary for the purpose of determining the real question in controversy between the parties. amendment was sought before the commencement of trial of the suit. the proposed amendment is necessary to determine the real questions in controversy between the parties. trial court has failed to exercise the jurisdiction vested in it and the illegality is apparent. order of trial court was set aside and amendment was allowed. - deficit court fee was made good when the appeal was represented......to comply with certain objections raised by the office. one of the objections was that court fee paid was deficit, thereafter, the appeal was represented. but there happened to be delay of about three-hundred and forty nine days. deficit court fee was made good when the appeal was represented. i.a. 1 was filed with a prayer to condone the delay in refilling the appeal papers. that came up for orders before this bench on 20-1-1981. by passing a considered order, we rejected i.a. 1. further on, we found that no order had been passed in this appeal at any stage as required by s. 149 and o. 7 r. 11 of the civil p.c. extending time to pay court fee. we rejected the memorandum of appeal also.3. it is evident from the aforesaid, that the memorandum of appeal has been rejected on the ground.....
Judgment:

Nesargi, J.

1. In our opinion, it is necessary to narrate a few facts before proceeding to deal with these I.A.S.

2. The appeal papers were returned to comply with certain objections raised by the office. One of the objections Was that court fee paid was deficit, Thereafter, the appeal was represented. But there happened to be delay of about three-hundred and forty nine days. Deficit court fee was made good when the appeal was represented. I.A. 1 was filed with a prayer to condone the delay in refilling the appeal papers. That came up for orders before this Bench on 20-1-1981. By passing a considered order, we rejected I.A. 1. Further on, we found that no order had been passed in this appeal at any stage as required by S. 149 and O. 7 R. 11 of the Civil P.C. extending time to pay court fee. We rejected the memorandum of appeal also.

3. It is evident from the aforesaid, that the memorandum of appeal has been rejected on the ground that there was no extension of time granted for payment of deficit court fee and the memorandum of appeal presented having not been properly stamped.

4. I.A.II has been filed once again for condonation of delay in re-filing the appeal. I.A.III has been filed for condonation of delay in paying the deficit court fee. I.A. IV has been filed for recalling the order dt. 20-1-1981 (narrated above). LAN has been filed for condonation of delay in filing I.A.IV.

5. It is, in the very nature of things, necessary to, consider I.A.IV in the first instance. This I. A. has been filed under S. 151 of the Civil P.C.

6. Whether inherent powers of the Court under S. 151 of the Civil P.C. can be invoked in such a case, is to be considered.

7. An order rejecting an appeal on the ground that proper court fee had not been made, does not, in our opinion, amount to a decree, as a memorandum of appeal cannot be placed on par with the plaint, so as to consider the same as equivalent to rejection of a plaint. This view of ours is supported by the decision In re. N. Kayambu Pillai AIR 1941 Mad 836 (FB). We respectfully adopt the reasoning in the said decision. In the said decision, an application for review of the order of dismissal of appeal for non-payment of court fee, was under consideration. In fact, the question that was under consideration was whether an application for review would lie and the court fee of Rs. 2/- paid on that application was proper as against the objection of the Tax Officer that advalorem court fee had to be paid. It was held that an application for review would lie and that court fee of Rs. 2/- paid on that application was a proper court fee. In the case on hand also, O. 47 of the Civil P.C. would be applicable and an application for review would lie. When there is a provision available in the Civil P.C. S. 151 cannot be invoked.

7A. Even if I.A.IV is treated as an application under O. 47 R. 1 of the Civil P.C. we find from the facts narrated in the affidavit of the learned Advocate Sri. Rama Bhat, filed in support of the I.A., that the ingredients of O. 47 R. 1 of the Civil P.C. would not be attracted. Therefore, we dismiss I.A.IV.

8. The consequence of dismissal of I.A.IV, naturally leads to the conclusion that I.As.II, III and V are to be dismissed. Hence, I.As.II, III and V are dismissed.

9. Sri. M. Rama Bhat, learned Advocate, prayed that an order refunding the amount of court fee paid on the memorandum of appeal, be passed as contemplated under Section 63 of the Karnataka Court-fees and Suits Valuation Act, 1958. Plain reading of S. 63 of the Act supports this request of Sri. Rama Bhat. We, therefore, direct that the full amount of Court fee paid on the memorandum of appeal, be refunded.

10. Ordered accordingly.


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