1. It is not necessary to advert to the facts and the merits of the case in this regular second appeal. The plaintiff-appellant had brought a suit seeking a declaration that the sale by public auction of the suit property situated in the Hussainpura suburb of the Amritsar town was invalid, without jurisdiction and therefore not binding on the plaintiff-appellant. The suit was contested and on the pleadings of the parties apart from others the following issue No. 1 which was treated as preliminary was framed:--
'Whether the suit is properly valued for purposes of court-fee and jurisdiction?'
The Trial Court came to the finding that the suit fell within Section 7(iv)(c) of the Court Fees Act and the plaintiff was, therefore, bound to pay advalorem court-fee on the market value of the property in dispute. Consequently the other issues were not adverted to upon merits and the plaintiff-appellants was directed to make up the deficiency on the basis of the market value of the property on the 8th April, 1968. However, the appellant failed to pay the court fee and correct the valuation of the suit in spite of two or three adjournments given by the Trial Court. Acting under Order 7, Rule 11, Civil Procedure Code, the Trial Court then rejected the plaint with costs on the 22nd May, 1968.
2. Aggrieved by the order above said the plaintiff-appellant went up in appeal which came up before the learned Senior Subordinate Judge, Amritsar, exercising enhanced appellate powers. Therein a preliminary objection was raised on behalf of the respondent that the memorandum of appeal had itself been insufficiently stamped and the appeal be rejected on that ground alone. The first Appellate Court opined that the view taken by the Trial Court that the case fell within Section 7(iv)(c) of the Court fees Act was apparently correct and therefore held that the memorandum of appeal was insufficiently stamped. It further saw no ground to allow the plaintiff-appellant to make good the deficiency in the court-fee before it and rejected the appeal on this preliminary ground.
3. The appellant has now come up against the order above said of the first Appellate Court.
4. Curiously enough in this Court again a preliminary objection has been taken on behalf of the respondents by Mr. Gandhi that the present second appeal also had not been adequately stamped and that the appeal be rejected on this ground alone. On a close perusal of the record, however, it appears that this objection which was rather strenuously pressed by the learned counsel had been raised under some misapprehension. The first Appellate Court had rendered its judgment on 29th January, 1972. The present appeal was filed in this Court on the 18th February, 1972. The Court-fee paid thereon was only Rs. 14.00. The Registry, therefore, raised an objection that the memorandum of appeal was insufficiently stamped and the appeal was returned to be refiled after complying with the objection. On the 8th Mach, 1972, however, the deficiency in the Court-fee amounting to Rs. 160.40 P. was duly made up by the appellant after giving a detailed account of the deficiency which was to be made up. This was accepted by the office and the case was them placed before the Motion Bench on the 9th of March, 1972, and after a day's adjournment was admitted on the 10th of March, 1972. It is evident therefore, that in the present Court the adequate Court-fee has been duly paid and that too within the prescribed period of limitation. The preliminary objection, therefore, must be rejected.
5. On the issue as to what was the court-fee payable by the appellant before the first Appellate Court there does not appear now to be any serious controversy. In Uday Chand v. Mohan Lal, 59 Pun LR 265=(AIR 1957 Punj 315) the Division Bench authoritatively held that where a plaint had been rejected under the provisions of Order 7, Rule 11, then the Court-fee payable on appeal is an ad valorem court-fee on the difference between the court-fee as paid by the plaintiff in the lower Court and the Court-fee held to be the proper Court-fee by the lower Court. That view has found repeated affirmance in this Court subsequently in Atma Singh v. Mohan Lal, AIR 1959 Punj 387 and Tarlok Singh v. Daljit Kaur, AIR 1961 Punj 426.
6. In view of the above, the solitary argument of Mr. M. L. Sarin in support of the appeal is that the appellant may be allowed to make up the deficiency of the Court-fee in the appeal before the lower Appellate Court and the case be remanded for a decision on merits. Reliance has been primarily placed on the decision of this Court in Sat Paul v. Jai Bhan, 74 Pun LR 359=(AIR 1973 Punj 58).
7. The contention of the appellant is patently meritorious. It is significant to note that even at the stage of the admission the appellant had primarily pressed this prayer and the Motion Bench noticed the same in the following terms:--
'Says he is prepared to make up the deficiency in this Court relying upon S. A. O. No. 17 of 1970 decided on 22-12-1971 (Reported in AIR 1973 Punj 58). Notice very early, status quo for the meanwhile to continue.'
The appellant has then filed Civil Miscellaneous No. 2289-C of 1972 dated the 28th January, 1972, which after notice to the counsel opposite is also before me for decision. The prayer therein also is in the identical terms and that apart the deficiency in the Court-fee before the lower appellate Court amounting to Rs. 160.40 P. has been paid and is attached to the application above said. The prayer has been made specifically under Section 149 read with Section 151, Civil Procedure Code. In this Context it also deserves notice that the trial Court whilst rejecting the plaint did to precisely lay down as to what was the market value of the property and consequently the precise amount of the court-fee held to be the proper court-fee payable by him. The appellant, therefore, could not precisely determine the amount of ad valorem court-fee which was payable on the difference for the purpose of the appellate jurisdiction. In the abovesaid context the case is fully covered by the ratio of Sat Paul's case 74 Pun LR 359=(AIR 1973 Punj 58) on which reliance rightly has been placed by the appellant. Mr. Gandhi on behalf of the respondent has neither distinguished the case nor cited any authority to the contrary. Considering all the circumstances in the present case I deem it to be a fit one for allowing the prayer of the plaintiff-appellant to make up the deficiency. As the same has already been made up in the present Court I accept the appeal and remand the case to the first appellate Court for a decision on merits. There will be no order as to costs.
8. Appeal allowed.