Mahavir Singh, J.
1. This is a revision by the defendant-applicant against the order of the learned lower appellate court rejecting her application for amendment of the written statement.
2. Relevant facts are that the plaintiff-respondent No. 1 had filed a suit for possession of a house. He had alleged that he was the allottee of this house and that he had allowed the defendant No. 1 appellant to live with him for some time but in his absence she got the house allotted in her name. Later, on his representation, the allotment was cancelled but she forcibly occupied the house and took away some articles. He valued the suit on the annual rent at Rs. 132/-.
3. The defendant No. 1 appellant contested the suit on various grounds which are not relevant for the purpose of this revision,
4. The learned lower court decreed the suit of the plaintiff-respondent No. 1. The defendant No. 1 then filed an appeal in the court of the District Judge, During the course of the pendency of the appeal the appellant moved an application for amendment of her written statement to take the plea of insufficiency of valuation and court-fee and also that the plaintiff-respondent had no right to file the suit.
5. The learned lower appellate court rejected the application and held that the defendant-appellant had taken this plea to delay the proceedings and that when no such plea was taken in the trial court, it was not open to him to take the plea at this late stage.
6. In this revision it is again contended that the lower court was wholly wrong as it was also the duty of the court to see that proper court-fee was paid and so even if an objection about it was not taken by her due to some inadvertence, that was no bar for her to take this plea whenever she became aware of the defect in the plaint on that account.
7. There is no doubt that under Section 6(1) of the Court-fees Act, it has been made incumbent upon a court of justice not to exhibit any document unless it is filed with the required court-fee but it cannot be said that this had not been done. When the plaint is received, the Court calls for a reportfrom the munsarim and when it is reported that the court-fee was sufficient, the court proceeds with the case, It was then upon the defendant appellant or any officer concerned entrusted with such duty to object to the sufficiency of the court-fee if they felt so and if that is not done and court proceeds with the case, the question of deficiency of court-fee cannot be raised in appeal for the first time. It is all the more so because the defendant appellant had in the memo of appeal paid court-fee only on the valuation given by the plaintiff respondent. In Bapu Eao v. N. K. Ghande (AIR 1927 Nag 321) the defendant was not allowed to raise such a question for the first time in second appeal. On the same principle the defendant cannot be allowed to raise this point in the first appeal also if no such objection was raised in the trial court.
8. Further there was actually no defect in the valuation. The learned counsel for the defendant-appellant contends that on suits for possession court-fee is to be paid in accordance with Section 7(v-A) of the Court-fees Act as amended in U. P. on the market value of the property involved, whereas - the plaintiff here valued the property only on the annual rental value. It is said that such a valuation is to be given only on suits between the landlord and tenant under Section 7(xi). This contention is not correct. For suits by a tenant against a trespasser or between the rival tenants, the valuation is to be made in accordance with Section 7(v-B) of the Court-fees Act. Only in suits in which proprietary possession is claimed. valuation is to be made on the market value as given in Section 7(v-A) of the Court-fees Act, It has also been so held in Chief Inspector of Stamps v. Sewa Sunder Lal ((1949) All WR HC 92). The plaintiff-respondent claimed himself to be an allottee and not the owner. He also alleged that the defendant-appellant was a trespasser but even if it was a dispute between the two rival tenants, provision of Section 7(v-B) of the Court-fees Act will apply So the valuation given by the plaintiff-respondent was correct.
9. Learned counsel for the appellant then contends that her plea to amend the written statement about the right of the plaintiff-respondent to sue should have been allowed but that was not necessary. Even otherwise noplaintiff can succeed if he has no right to sue.
10. So there is no force in this revision which is dismissed with costs.