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sec.12 of court fee Act and sec.148 of C.P.C – court fee – non payment – DCF can be cured -yes- Amendment of plaint with two reliefs – decree passed – in appeal it was pointed out no court fee was paid on two reliefs and as such suit is liable to be dismissed – first appellant court rejected the plea and granted time to make deficiency of court fee the good – writ – High court reversed the order of first appellant court holding that appellant court can not do it – Apex court held that there was no order by the trial court directing the plaintiffs to make good the deficit court-fee within a particular time. the High Court, overlooked well known legal position that appeal is continuation of suit and the power of the appellate court is co-extensive with that of the trial court. It failed to bear in mind that what could be done by the trial court in the proceeding of the suit, can always be done by the appellate court in the interest of justice.and the High Court failed to consider clause (ii) of Section 12 of 1870 Act and as such set aside the high court order and upheld the order of first appellant court = CIVIL APPEAL NO. 8660 OF 2014 [ARISING OUT OF S.L.P. (C) NO. 9042 OF 2013] |SARDAR TAJENDER SINGH GHAMBHIR AND ANOTHER |…|APPELLANT(s) | | Versus | |SARDAR GURPREET SINGH & OTHERS |… |RESPONDENT(s) |= 2014- Sept. month- http://judis.nic.in/supremecourt/filename=41943

sec.12 of court fee Act and sec.148 of C.P.C – court fee – non payment – DCF can be cured -yes-  Amendment of plaint with two reliefs – decree passed – in appeal it was pointed out no court fee was paid on two reliefs and as such suit is liable to be dismissed – first appellant court rejected the plea and granted time to make deficiency of court fee the good – writ – High court reversed the order of first appellant court  holding that appellant court can not do it – Apex court held that there  was  no  order  by the trial court directing the plaintiffs to make good the deficit  court-fee within a particular time. the  High  Court,  overlooked  well  known  legal position that  appeal  is  continuation  of  suit  and  the  power  of   the appellate court is co-extensive with that of the  trial  court.   It  failed to bear in mind that what    could  be  done  by  the  trial  court  in the proceeding of the suit, can always be done by the  appellate  court  in  the interest of justice.and the High Court  failed  to  consider  clause  (ii)  of Section 12 of 1870 Act and as such set aside the high court order and upheld the order of first appellant court =

suit  for  declaration  and

injunction.  It is not in dispute that adequate court  fee  in  that  regard

was paid by the plaintiffs.  Lateron, reliefs were amended and  prayers  for

compensation and  utilization  were  also  made.  However,  on  the  amended

valuation, there was deficiency in payment of  court-fee   but  to  make  up

such deficiency, no order was passed by the trial court.=

In the first appeal, an objection regarding deficit court-fee  was

raised by the defendants.

The  first  appellate   court,  however,  observed

that while granting amendment  in  the  plaint,  the  trial  court  did  not

prescribe any time limit in connection with the  payment  of  court-fee  and

even no objection was raised by the defendants in that regard.   The  aspect

of deficit court-fee came to the knowledge of the plaintiffs at the time  of

preparation of decree only and, therefore, an  opportunity  deserved  to  be

granted to the plaintiffs to make up the deficit court-fee in  the  interest

of justice. =

   Against this order of  the  first  appellate  court,  respondent

Nos. 1 and 2 filed a writ petition under Article 227 of the Constitution  of

India.  The High Court in paragraph 7 of the impugned order held  as  under:

In the case in hand, after amendment in the valuation clause of the  plaint,

it was duty of the plaintiffs to make good the deficiency in the court  fee.

Deficiency of the court fee could be made good in  the  trial  court  only.

Perusal of sub-section (2) of Section 6 of the  Court  Fees  Act  transpires

that no plaint shall be acted  upon, unless deficiencies in  the  court  fee

are made good.  Court Fees  Act  further  provides  that  in  no  case,  the

judgment shall be delivered unless the deficiency in  court  fee   has  been

made good.  Section 149 of C.P.C. though  gives  powers   to  the  Court  to

allow the plaintiff to pay the deficit court fee but such power is given  to

the Court before the disposal of  suit.  Thus,  permission  for  payment  of

additional court fee or for making good the deficiency in  Court  fee  could

only be granted during the pendency  of  suit.  In  absence  of  payment  of

sufficient court fee the judgment could not  be  delivered.   Deficiency  of

court fee in respect of plaint cannot be  made  good  during  the  appellate

stage.  Such permission could not be granted by the  appellate  court  under

Section 151 C.P.C.. In case such permission is  permitted  to  the  parties,

then it would not only be per-se illegal but would also be a  bad  precedent

since all litigants would adopt this method of paying court fee  only  after

obtaining relief from the trial court, before the Appellate  Court.  I  have

no hesitation to say that decision making  process  of  Additional  District

Judge/FTC II, Dehradun in per-se vitiated and cannot be appreciated. He  has

exercised his jurisdiction with material irregularity and  order  passed  by

him deserves to be set-aside.=

The High Court was clearly in error in  invoking   the

above provision without appreciating the fact that there  was  no  order  by

the trial court directing the plaintiffs to make good the deficit  court-fee

within a particular time.

12.         The High Court was also in error in holding that  deficiency  in

court-fee  in respect of plaint cannot be made  good  during  the  appellate

stage.  In  this  regard,  the  High  Court,  overlooked  well  known  legal

position that  appeal  is  continuation  of  suit  and  the  power  of   the

appellate court is co-extensive with that of the  trial  court.   It  failed

to bear in mind that what    could  be  done  by  the  trial  court  in  the

proceeding of the suit, can always be done by the  appellate  court  in  the

interest of justice.

13.         Secondly, the High Court  failed  to  consider  clause  (ii)  of

Section 12 of 1870 Act which reads:

(ii) 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 within such time as may be  fixed  by

it, so much additional fee as would have been payable had the question  been

rightly decided. If such additional fee is not paid within  the  time  fixed

and the defaulter is the appellant, the appeal shall be  dismissed,  but  if

the defaulter  is the respondent  the Court shall inform the  Collector  who

shall recover the deficiency as if it were an arrear of land revenue.

14.         The above provision clearly  empowers  the  appellate  court  to

direct a party to make up deficit court-fee in the plaint at  the  appellate

stage.  The power exercised by the first appellate court can  be  traced  to

clause (ii) of Section 12 of 1870 Act as well.

15.         The order of the first appellate court   being   eminently  just

and proper,  in our view, there  was  no  justification  for the High  Court

to  invoke  its  power  under  Article  227 of the

Constitution  of  India  and  interfere  with  an  order  which  effectively

advanced the cause of justice.

16.         For all these reasons, the impugned order  is  unsustainable  in

the eye of  law and deserves to set-aside and is set-aside.

17.         Civil Appeal is allowed as above with  no  order  as  to  costs.

2014- Sept. month- http://judis.nic.in/supremecourt/filename=41943

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8660 OF 2014
[ARISING OUT OF S.L.P. (C) NO. 9042 OF 2013]

|SARDAR TAJENDER SINGH GHAMBHIR AND ANOTHER |…|APPELLANT(s) |
| Versus |
|SARDAR GURPREET SINGH & OTHERS |… |RESPONDENT(s) |

J U D G M E N T

R.M.LODHA, CJI.

Leave granted.
2. The appellants are plaintiffs in the suit for declaration and
injunction. It is not in dispute that adequate court fee in that regard
was paid by the plaintiffs. Lateron, reliefs were amended and prayers for
compensation and utilization were also made. However, on the amended
valuation, there was deficiency in payment of court-fee but to make up
such deficiency, no order was passed by the trial court.
3. The present respondent Nos. 1 & 2 (defendants in the suit)
preferred first appeal which was heard by the Additional District Judge,
Dehradun. In the first appeal, an objection regarding deficit court-fee was
raised by the defendants. The first appellate court, however, observed
that while granting amendment in the plaint, the trial court did not
prescribe any time limit in connection with the payment of court-fee and
even no objection was raised by the defendants in that regard. The aspect
of deficit court-fee came to the knowledge of the plaintiffs at the time of
preparation of decree only and, therefore, an opportunity deserved to be
granted to the plaintiffs to make up the deficit court-fee in the interest
of justice.
4. Against this order of the first appellate court, respondent
Nos. 1 and 2 filed a writ petition under Article 227 of the Constitution of
India. The High Court in paragraph 7 of the impugned order held as under:

In the case in hand, after amendment in the valuation clause of the plaint,
it was duty of the plaintiffs to make good the deficiency in the court fee.
Deficiency of the court fee could be made good in the trial court only.
Perusal of sub-section (2) of Section 6 of the Court Fees Act transpires
that no plaint shall be acted upon, unless deficiencies in the court fee
are made good. Court Fees Act further provides that in no case, the
judgment shall be delivered unless the deficiency in court fee has been
made good. Section 149 of C.P.C. though gives powers to the Court to
allow the plaintiff to pay the deficit court fee but such power is given to
the Court before the disposal of suit. Thus, permission for payment of
additional court fee or for making good the deficiency in Court fee could
only be granted during the pendency of suit. In absence of payment of
sufficient court fee the judgment could not be delivered. Deficiency of
court fee in respect of plaint cannot be made good during the appellate
stage. Such permission could not be granted by the appellate court under
Section 151 C.P.C.. In case such permission is permitted to the parties,
then it would not only be per-se illegal but would also be a bad precedent
since all litigants would adopt this method of paying court fee only after
obtaining relief from the trial court, before the Appellate Court. I have
no hesitation to say that decision making process of Additional District
Judge/FTC II, Dehradun in per-se vitiated and cannot be appreciated. He has
exercised his jurisdiction with material irregularity and order passed by
him deserves to be set-aside.

5. It is this order which is challenged in the present appeal, by
special leave. The High Court has heavily relied upon the provisions
contained in sub-sections (2) & (3) of Section 6 of the Court-fees Act,
1870 (as applicable in U.P.) (for short “1870 Act”) which provide that no
plaint shall be acted upon unless deficiency in court-fee is made good and
further provision contained in sub-section (3) of Section 6 that in no case
the judgment shall be delivered unless the deficiency in court-fee has been
made good. The High Court was also of the view that deficiency in court-
fee in respect of plaint cannot be made good during the appellate stage and
such permission could not be granted by the appellate court under Section
149 or Section 151 of the Civil Procedure Code.
6. We have heard Mr. Shyam Divan, learned senior counsel for the
appellants and Mr. Jayant Bhushan, learned senior counsel for the
respondent Nos. 1 and 2 at quite some length.
7. In our view, the impugned order can not be sustained for more
than one reason. In the first place, the High Court has not properly
construed sub-sections (2) & (3) of Section 6 of the 1870 Act. For proper
appreciation of sub-sections (2) & (3) of Section 6, we quote the entire
Section 6 of
the 1870 Act which reads as under:
6. Fees on documents filed, etc., in Mufassil Courts or in Public Offices
-(1) Except in the courts hereinbefore mentioned, no document of any kinds
specified as chargeable in the first or second Schedule to this Act annexed
shall be filed, exhibited or recorded in any Court of Justice, or shall be
received or furnished by any public officer, unless in respect of such
document there be paid a fee of an amount not less than that indicated by
either of the said Schedules as the proper fee for such document:

[Provided that where such document relates to any suit, appeal or other
proceeding under [any law relating to land tenures or land revenue] the fee
payable shall be three-quarters of the fee indicated in either of the said
Schedules except where the amount or value of the subject-matter of the
suit, appeal or proceeding to which it relates exceeds Rs. 500:

Provided further that the fee payable in respect of any such document as
is mentioned in the foregoing proviso shall not be less than [one and one-
forth] of that indicated by either of the said Schedules before the first
day of May, 1936].

{Explanation – Where the amount of fee prescribed in the Schedule contain
any fraction of a rupee below [twenty-five naye paisa] or above [twenty-
five naye paise] but below [fifty naye paise] or above [fifty naye paise]
but below [seventy-five naye paise] or above [seventy-five naye paise] but
below one rupee, the proper fee shall be an amount rounded off to the next
higher quarter of a rupee as hereinafter appearing in the said Schedules].

(2) Notwithstanding the provisions of sub-section (1), a Court may
receive plaint or memorandum of appeal in respect of which an insufficient
fee has been paid, but no such plaint or memorandum of appeal shall be
acted upon unless the plaintiff or the appellant, as the case may be, makes
good the deficiency in court-fee within such time as may from time to time
be fixed by the court.

[(3) If a question of deficiency in court-fee in respect of any plaint or
memorandum of appeal is raised by an officer mentioned in Section 24-A the
Court shall, before proceeding further with the suit or appeal, record a
finding whether the court-fee paid is sufficient or not. If the Court
finds that the court-fee paid is insufficient, it shall call upon the
plaintiff or the appellant, as the case may be, to make good the deficiency
within such times as it may fix, and in case of default shall reject the
plaint or memorandum of appeal:

Provided that the Court may, for sufficient reasons to be recorded, proceed
with the suit or appeal if the plaintiff or the appellant, as the case may
be, give security, to the satisfaction of the Court, for payment of the
deficiency in court-fee within such further times as the Court may allow.
In no case, however, shall judgment be delivered unless the deficiency in
court-fee has been made good, and if the deficiency is not made good within
such time as the Court may from time to time allow, the Court may dismiss
the suit or appeal.

(4) Whenever a question of the proper amount of court-fee payable is
raised otherwise than under sub-section (3), the Court shall decide such
question before proceeding with any other issue.

(5) In case the deficiency in court-fee is made good within the time
allowed by the Court, the date of the institution of the suit or appeal
shall be deemed to be the date on which the suit
was filed or the appeal presented.

(6) In all cases in which the report of the officer referred to in sub-
section (3) is not accepted by the Court, a copy of the findings of the
Court together with a copy of the plaint shall forthwith be sent to the
[Commissioner of Stamps]].

8. While referring the provisions of sub-sections (2) and (3) of
Section 6, we shall refer to ‘plaint’ which for the purposes of this
discussion may be read to include ‘memorandum of appeal’ as well. Sub-
section (2) of Section 6 provides that in plaint in which sufficient court-
fee has not been paid, such plaint shall not be acted upon unless the
plaintiff makes good the deficiency in court-fee within such time as may
from time to time be fixed by the Court. Sub-section (3) provides that if
a question of deficiency in court-fee in respect of any plaint is raised
and the Court finds that the court-fee paid is insufficient, it shall ask
the plaintiff to make good the deficiency within the time which may be
granted and in case of default, the plaint shall be rejected. The main
provision of sub-section (3) mandates the Court to record a finding whether
court-fee paid is sufficient on the question being raised by the concerned
officer under Section 24A. It further provides that in answer to that
question if the Court finds that court-fee paid is deficient, the Court may
allow plaintiff to make up that deficiency within time so fixed by the
Court. Then there is a proviso appended to sub-section (3) which provides
that Court may, for sufficient reasons to be recorded, proceed with the
suit if security is given by the plaintiff for payment of the deficiency in
court-fee within time that may be granted by the court. It, however,
requires the Court not to deliver the judgment till such time deficiency is
not recovered and if the deficiency in court-fee is not made good within
such time as the Court may from time to time allow, the Court may dismiss
the suit or appeal.
09. The scheme of the above provisions is clear. It casts duty on
the Court to determine as to whether or not court-fee paid on the plaint
is deficient and if the court-fee is found to be deficient, then give an
opportunity to the plaintiff to make up such deficiency within the time
that may be fixed by the Court. The important thread that runs through sub-
sections (2) and (3) of Section 6 of 1870 Act is that for payment of court-
fee, time must be granted by the court and if despite the order of the
court, deficient court-fee is not paid, then consequence as provided
therein must follow.
10. Insofar as present case is concerned, the first appellate
court in its order rightly observed that after amendment of plaint and
consequent amendment in valuation, the trial court did not pass any order
specifying time for payment of deficient court-fee. Obviously, in the
absence of such specific order, sub-sections (2) & (3) of Section 6 of 1870
Act would not come into operation against the plaintiff.
11. The argument of the learned senior counsel for the respondent Nos.
1 and 2 on construction of sub-sections (2) & (3) of Section 6 of 1870 Act
cannot be accepted. The High Court was clearly in error in invoking the
above provision without appreciating the fact that there was no order by
the trial court directing the plaintiffs to make good the deficit court-fee
within a particular time.
12. The High Court was also in error in holding that deficiency in
court-fee in respect of plaint cannot be made good during the appellate
stage. In this regard, the High Court, overlooked well known legal
position that appeal is continuation of suit and the power of the
appellate court is co-extensive with that of the trial court. It failed
to bear in mind that what could be done by the trial court in the
proceeding of the suit, can always be done by the appellate court in the
interest of justice.
13. Secondly, the High Court failed to consider clause (ii) of
Section 12 of 1870 Act which reads:
(ii) 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 within such time as may be fixed by
it, so much additional fee as would have been payable had the question been
rightly decided. If such additional fee is not paid within the time fixed
and the defaulter is the appellant, the appeal shall be dismissed, but if
the defaulter is the respondent the Court shall inform the Collector who
shall recover the deficiency as if it were an arrear of land revenue.

14. The above provision clearly empowers the appellate court to
direct a party to make up deficit court-fee in the plaint at the appellate
stage. The power exercised by the first appellate court can be traced to
clause (ii) of Section 12 of 1870 Act as well.
15. The order of the first appellate court being eminently just
and proper, in our view, there was no justification for the High Court
to invoke its power under Article 227 of the

Constitution of India and interfere with an order which effectively
advanced the cause of justice.
16. For all these reasons, the impugned order is unsustainable in
the eye of law and deserves to set-aside and is set-aside.
17. Civil Appeal is allowed as above with no order as to costs.
…………………..CJI.
(R.M. LODHA)
……………………J.
(KURIAN JOSEPH)
NEW DELHI; ……………………J.
SEPTEMBER 12, 2014 (ROHINTON FALI NARIMAN)

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