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Tuesday, September 30, 2014

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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