Harbans Singh, J.
1. This second appeal has arisen in the following circumstances. A suit was brought by the appellant claiming that in the western wall of his house he had five windows, nine ventilators and 2 gutters, and that this has been in existence for more than 20 years and, therefore, he had acquired a right of easement qua the adjoining land of the defendant and that the defendant wanted to construct a wall and that an injunction should be granted against the defendant preventing him from raising any wall within four feet of plaintiff's wall, so that he may not interfere with the right of easement enjoyed by the plaintiff. Valuation for Court-fee fixed was Rs. 130/- and court fee was paid thereon. Meanwhile the defendant had constructed a portion of the wall obstructing two of the ventilators but the trial Court granted the decree as prayed but did not direct demolition of the wall that had already been constructed. Aggrieved by this, the plaintiff went up in appeal. There, the learned lower appellate Court came to the conclusion that the Court-fee should have been paid in the Court below as well as before him, treating each opening as giving a separate cause of action. He, therefore, gave time to the appellant to put in additional Court-fee not only on the memorandum of appeal but also in respect of the suit This not having been done, the entire suit of the plaintiff was dismissed, notwithstanding the fact that no appeal had been filed by the defendant against the decree granted by the trial Court. Aggrieved by this, the plaintiff filed this second appeal.
2. The learned lower appellate Court felt that Sub-clause (ii) of Section 12 of Court-fees Act was applicable and, therefore, suit could be dismissed. Sub-clause (i) of Section 12 is to the effect that where any dispute arises as to the sufficiency of the Court-fee on a plaint or memorandum, the Court shall decide this matter and that will be final and binding between the parties. Then Sub-clause (ii) runs as follows :--
'But whenever any such suit comes before a Court of appeal, reference or revision, if such Court considers that the said question has been wrongly decided to the detriment of the revenue, it shall require the party by whom such fee has been paid to pay so much additional fee as would have been payable had the question beep rightly decided, and the provisions of Section 10, paragraph (ii), shall apply.'
The argument of the learned counsel for the appellant was that even if it be taken for the sake of arguments that the plaint in the trial Court was insufficiently stamped, the matter before the Court of appeal related only to the two ventilators, qua closing of which plaintiff suit had been dismissed. The entire suit was not before the Court and, consequently, the lower appellate Court had no jurisdiction to dismiss the entire suit. In support or this contention, he cited Secy of State v. Subramanian, AIR 1938 Mad 278, which is a decision by a Division Bench, and head-note (a) runs as follows :--
'Where a part of the subject-matter of the suit only is comprised in the appeal before the Appellate Court, deficit court-fee only in respect of that part of the suit can be levied and not in respect of the entire subject-matter of the suit.' If deficit Court-fee can be levied only in respect of the part which is before the appellate Court, then it follows that on non-payment of the deficit, suit relating to that part alone can be dismissed. There appears to be force in this argument.
3. Another objection raised by the learned counsel for the appellant is that the Court-fee even on appeal, according to the finding of the learned lower appellate Court, was not sufficient. That being the case, the appeal was not properly before the Court. The first step to be taken by the Court, therefore, was to direct the proper Court-fee to be paid on the appeal so that it was properly before the Court before it could take any action under Sub-clause (ii) of Section 12 of the Act. Again a Division Bench judgment of the Madras High Court Govinda Nambi v. Parameshwara Nambi (1891) 1 Mad LJ 528, is referred to in this respect. It was observed as follows :--
'Until the appeal was admitted, it was not competent to the Judge to pass any order dismissing the original suit.'
No authority was cited to the contrary. It is to be observed in the present case that the defendant had not filed any appeal against the order of the trial Court prohibiting him from raising any further construction so as to obstruct any of the other openings. It was only the plaintiff, who was aggrieved against the order of the Court dismissing his suit qua the two openings which had been closed. So the matter before the lower appellate Court related only to the two ventilators and this appeal was also under-stamped according to the view of the lower appellate Court. Thus, there was no proper appeal before the Court and the only course open to the Court was to call upon the appellant to pay the correct Court-fee on the memorandum of appeal and if that was not paid, to dismiss the appeal and it could not take any further action. Following the view of the Madras High Court, therefore, I feel that the order passed by the lower appellate Court is not warranted and I accept this appeal set aside the judgment and decree of the lower appellate Court and restore that of the trial Court. In the peculiar circumstances of the case, there will be no order as to costs.