Man Mohan Singh Gujral, J.
1. This regular first appeal is directed against the judgment and decree of the Subordinate Judge First Class, Palwel, dated the 26th February, 1962, whereby the plaintiff's suit for partition of a joint house was dismissed but the parties were left to bear their own costs.
2. On behalf of the respondents a preliminary objection has been raised and it is contended on the basis thereof that the memorandum of appeal be reiected. It is pointed out that in the trial Court one of the controversies reused was that the Court-fee had not been properly paid and on the basis of this objection in the written statement, the following two preliminary Issues were framed:--
'(1) What is the market value of the property in suit
(2) What is the proper valuation of the plaint for Court-fee and iurisdic-tion ?'
The learned trial Court by order dated the 9th August, 1961. then fixed the valuation of the plaint for the purposes of Court-fee and jurisdiction at Rs. 7,035/-and directed the plaintiff to amend the plaint and make up the deficiency in the Court-fee by the time fixed in the order. In obedience to this order the plaintilT amended the plaint and then paid ad valorem Court-fee on the market value of the property as fixed in the order.
3. On the memorandum of appeal the appellant, however, affixed a Court-fee of Rs. 19.50 on the assertion that the suit fell under Schedule II, Article 17, Clause 6, of the Court-fees Act and the memorandum of appeal was liable to be stamped with a Court-fee of Rs. 19-50 only. The office raised an objection by pointing out the decision of Issue No. 2 by the Trial Court. In spite of this objection, the Court-fee was not made good and the appeal was subsequently admitted to a regular hearing without this matter having been decided.
4. In view of the above facts, it is contended on behalf of the respondent that there being no proper memorandum of appeal before this Court the memorandum ought to be rejected. Mr. Puran Chand appearing for the appellant has urged the following points in this connection:--
'(i) that before the plaint was rejected time ought to be granted to the plaintiff-appellant to make good the deficiency as provided by Rule 11 of Order 7, Civil Procedure Code
(ii) that in any case opportunity to make good the Court-fee ought to be given under Section 149 of the Civil Procedure Code
(iii) that it is open to the appellant to challenge the correctness of the decision of the trial Court on the preliminary issues and to show that the plaintiff was liable to pay Court-fee under Section 2, Article 17, Clause 6 of the Court Fees Act and that the memorandum of appeal was affixed with the correct amount of Court-fee.'
5. So far as the first argument is concerned, the decision of this Court in Ajey Textile v. The British India Corporation, ILR 1979 (2) Punj & Har 127, is a complete answer to this contention. On a consideration of the entire case-law on this question it was held that the provisions of Order 7. Rule 11 do not apply to appeals and that the Appellate Court is entitled to reject an appeal if the Full Court-fee has not been paid without calling upon the appellant to pay the deficient Court-fee, because in so far as the memorandum of appeal is concerned, ex-press provision has been made in Order 41, Rule 3, for its rejection on the grounds stated in that rule. It was further observed that the appellate Court was not bound to allow the appellant an opportunity to make up the deficiency in Court-fee after the expiry of the period of limitation for preferring the appeal. In view of these observations, I have no hesitation in rejecting the first contention as untenable.
6. Though no application under Section 149 of the Civil Procedure Code has been made, a prayer was made at the bar that the time for making good the deficiency be granted. Having regard, however, to the circumstances, I find that it is not a case where discretion should be exercised in favour of the appellant. The facts that the trial Court had found the preliminary issues against the plaintiff and he had been directed to amend the plaint and affix the correct Court-fee had been clearly brought to the notice of the appellant but in spite of this the memorandum of appeal was not amended and the requisite Court-fee was not paid.
7. In M/s. Ajey Textile's case ILR (1970) 2 Punj & Har 127 the view of the Full Bench of the Allahabad High Court in S. Wajid Ali v. Mt. Isar Bano Urf Fatma, AIR 1951 All 64, with regard to the circumstances under which the discretion of the Court under Section 149 of the Civil Procedure Code was to be exercised was accepted and it was observed that unless circumstances are shown which satisfy the Court that the inability to pay Court-fee has been caused by circumstances beyond the litigant's control or substantial amount of Court-fee has been paid showing the bona fides of the litigant, time could not be extended. In the present case, the learned Counsel for the appellant could not point out any circumstance from which an inference could be drawn that the appellant was prevented by circumstances beyond his control from paying the proper amount of Court-fee and the case, therefore, does not fall within the special circumstances referred to in the decision of the Allahabad High Court. Even otherwise, I find that no case for the exercise of discretion in favour of the appellant has been made out. It may also be mentioned that the decree-sheet which was filed along with the memorandum of appeal clearly mentions that the Court-fee on the full value of the property had been paid and not on the basis on which it was affixed on the plaint.
8. The third argument raised on behalf of the appellant is equally without merit. Before the appellant can be permitted to urge that the decision of the trial Court on the preliminary issues was wrong, a proper memorandum of appeal had to be filed. The Court-fee on thememorandum of appeal had to be affixed in accordance with the amended plaint and the decision of the Court given on the preliminary issues on the basis of which the plaint was amended. Unless this is done there is no proper memorandum of appeal before this Court and it is not open to this Court to consider the merits of the argument so far as the preliminary issues are concerned. There being no properly constituted appeal before me, the question whether the memorandum of appeal was to be affixed with Court-fee according to Schedule 2, Article 17, Clause 6, of the Court Fees Act cannot be gone into and decided in these proceedings.
9. For the reasons indicated above, I hold that there is no properly constituted memorandum of appeal under Order 41, Rule 3, and that the memorandum of appeal merits rejection. I consequently reject the memorandum of appeal. The parties are however, left to bear their own costs.