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Baijnath Prasad Vs. Tejpal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1941All55
AppellantBaijnath Prasad
RespondentTejpal and ors.
Excerpt:
.....that an assurance was held out by the plaintiff's counsel that if, while deciding the suit, the civil judge found the court-fee to be insufficient, the insufficiency in the court-fee will be made good by the plaintiff forthwith. the learned civil judge held that the court-fee paid was insufficient and, by the operative portion of his judgment, directed the plaintiff to make good the deficiency in the court-fee and further ordered that the preparation of the decree be deferred till the deficiency in the court-fee was made good. the words used by the court below were :the decree to be prepared when the deficiency in court-fee is made good. ' 2. the court below allowed 15 days' time to the plaintiff to make good the deficiency. there is however an order passed by the court below calling..........circumstances. baijnath prasad plaintiff-appellant filed a suit for partition in the court of the civil judge of azamgarh. the suit was contested by the defendant-respondents and one of the points raised in defence was that the plaint was insufficiently stamped. in consequence of this plea raised, by the defendants one of the issues raised in the case was whether the court-fee paid was sufficient.' in view of the provisions of section 6(4), court-fees act, it was the duty of the civil judge to have decided the question of sufficiency or otherwise of the court-fee paid on the plaint before proceeding to decide the other issues in the case. it however appears that an assurance was held out by the plaintiff's counsel that if, while deciding the suit, the civil judge found the court-fee to.....
Judgment:

Iqbal Ahmad, J.

1. This is a report by the taxing officer and arises under the following circumstances. Baijnath Prasad plaintiff-appellant filed a suit for partition in the Court of the civil Judge of Azamgarh. The suit was contested by the defendant-respondents and one of the points raised in defence was that the plaint was insufficiently stamped. In consequence of this plea raised, by the defendants one of the issues raised in the case was whether the court-fee paid was sufficient.' In view of the provisions of Section 6(4), Court-fees Act, it was the duty of the civil Judge to have decided the question of sufficiency or otherwise of the court-fee paid on the plaint before proceeding to decide the other issues in the case. It however appears that an assurance was held out by the plaintiff's counsel that if, while deciding the suit, the civil Judge found the court-fee to be insufficient, the insufficiency in the court-fee will be made good by the plaintiff forthwith. In view of this assurance the learned civil Judge did not follow the procedure enjoined by Section 6(4), Court-fees Act, and decided the issue as regards the court-fee along with the other issues framed in the case. In other words, the learned civil Judge delivered one judgment in the case dealing with the question of the court fees and with the question of the rights of the parties as regards the subject-matter of the suit. It is needless to observe that this procedure was in flagrant violation of the provisions of Section 6(4), Court-fees Act, and should not have been followed by the learned civil Judge. The learned civil Judge held that the court-fee paid was insufficient and, by the operative portion of his judgment, directed the plaintiff to make good the deficiency in the court-fee and further ordered that the preparation of the decree be deferred till the deficiency in the court-fee was made good. The words used by the Court below were : 'The decree to be prepared when the deficiency in court-fee is made good.'

2. The Court below allowed 15 days' time to the plaintiff to make good the deficiency. The plaintiff however did not pay the deficiency within the time allowed, and filed an appeal in this Court styling the same as a first appeal under Section 96, Civil P.C. and Section 6-A, Court-fees Act. He valued his appeal at Rs. 2500 and paid a court-fee of Rs. 15. No less than 24 grounds were embodied in the memorandum of appeal but only some of those grounds related to the decision of the Court below on the question of court-fees, and the remaining grounds were with respect to the decision of the Court below as regards the merits of the case. The relief sought by the appeal was that the decree of the Court below be modified and the plaintiff's suit be decreed in full, or such other and further relief be granted to the plaintiff as this Court may think fit. The facts stated above gave rise to the question as to whether the appeal filed in this Court was an appeal against a decree or an appeal against an order or was in fact not an appeal at all, and was merely an application in revision. The taxing officer rightly considered that the question raised was beset with difficulty and he accordingly referred the question for decision to us.

3. It is clear that the memorandum of appeal filed by the plaintiff in this Court cannot be treated as an application in revision for the simple reason that, in 'accordance with the provisions of Section 115, Civil P.C. an application in revision can be filed in this Court only in cases in which no appeal lies to this Court against the decision of the Court below. In the case under consideration the decision of the Court below will be appealable to this Court as a decree and as such Section 115 can have no application to the case. It is also obvious that the appeal filed by the plaintiff in this Court cannot be considered as an appeal against a decree for the simple reason that no decree has yet been prepared in the case. There is however an order passed by the Court below calling upon the plaintiff to make good the deficiency in court-fee, and an appeal against such an order is allowed by Section 6-A, Court-fees Act. On the facts as they stand, the plaintiff is entitled to assail by appeal the order of the Court below calling upon him to make good the deficiency in the court-fee and the appeal filed by the plaintiff must, therefore, be regarded as an appeal from order in accordance with the provisions of Section 6-A, Court-fees Act. In this view of the matter the only grounds that can be properly embodied in the memorandum of appeal are the grounds that question the decision of the Court below on the question of court-fees. The remaining grounds that deal with the merits of the case are superfluous and the counsel for the appellant must be called upon to strike off the same. Before parting with this case we desire to draw the attention of the Courts below to the imperative necessity of faithfully following the provisions of Clause 2, 3 and 4 of Section 6, Court-fees Act, so that anomalies of the description with which we have to deal in the present case may not arise in future.


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