ORDER
Kulkarni, J.
1. This is an unusual revision by the plaintiff against the decree dated 24-7-85 passed by the IV Additional City Civil Judge, City Civil Court, Bangalore in O.S. 1891/80 decreeing the suit against defendants 1 to 5 only.
2. There was an agreement of sale in favour of the plaintiff executed by defendant No. 1 and others. In pursuance of that agreement, the plaintiff had paid Rs. 47,000/- as advance. Later on disputes appear to have arisen between the parties. The plaintiff filed the present suit for recovery of Rs. 47,000/- which he had given as advance to defendant No. 1 and others under the said agreement of sale.
3. Defendants resisted the suit.
4. In the meanwhile plaintiff filed an application under Order 6, Rule 17 C.P.C. seeking an amendment of the plaint and thereby praying for the relief of specific performance. It was rejected by the trial Court. His revision to this Court failed. Thereafter, he filed an application for amendment of plaint seeking a further amount of Rs. 125/- from defendant No. 1 and others. The defendants were caught in the trap by the plaintiff and they consented to it. So that amendment was allowed. The defendants are said to have consented to the decree.
5. The trial Court, without ascertaining the liability of the plaintiff to pay the deficit Court-fee on Rs. 125/- and taking advantage of defendant 1 and others consenting to the decree, decreed the suit against defendants 1 to 5. But, the plaintiff feels aggrieved. He appears to have got some mischievous weapon in his armoury but we are not concerned with the same. Now the question is whether the trial Court can decree the suit without recovering the deficit Court-fee, only on the strength of the fact that the defendants have consented to a decree.
6. Order 7, Rule 11 C.P.C reads :
'Rejection of plaint :
The plaint shall be rejected in the following cases ;
a) where it does not disclose a cause of action ;
b) where the relief claimed is undervalued and the plaintiff on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so ;
c) where the relief claimed is properly valued but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so ;
d) where the suit appears from the statement in the plaint to be barred by any law :
Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-paper, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff'.
It is now admitted that the trial Court after the addition of Rs. 125/- to the suit claim called upon the plaintiff to pay the deficit Court-fee and the plaintiff refused to pay the same. It is no doubt true that this Court has held in Visvarama Hotels Ltd. v. Anjuman-E-Imamia, ILR 1985 KAR 823 as;
'Applying the well recognised tests to decide whether a provision is mandatory or directory, Order 7, Rule 11 C.P.C. though couched in peremptory language, is not a peremptory provision and is only a directory provision. But notwithstanding any infirmity in their valuation slip, the plaintiffs offered to place evidence on the valuation of the property and abide by the decision of the Court. When that was so and otherwise also, it was the plain duty of the Court to record evidence and decide the question. Without doing that, the Trial Court could not have rejected the plaint at all.'
Therefore, the facts available in the said case appear to be altogether different from the facts available in this case. In the said case, the plaintiff wanted an enquiry to be made regarding the valuation but the Court-below refused to do so and rejected the plaint straightaway. Therefore, this Court held that when the plaintiff was ready and willing to abide by the order of the Court and to file a fresh valuation slip if called upon by the Court to do so, the Court-below ought not to have rejected the plaint straightaway. Thus, in this sense, this Court held that Order 7, Rule 11 C.P.C. was not a peremptory provision but was only a directory provision.
7. Learned Counsel Sri Vardachar referred me to Devanarayan Ramsumar Tewari v. State of Bombay Now Gujarat & Anr., : AIR1963Guj79 . It has been stated in the said case as :
'An order rejecting the plaint after the issues have been framed, is clearly wrong. When a suit has been admitted under Order 7, Rule 9, it cannot be rejected under Order 7, Rule 11. It is also clear from Order 9 that after summonses are served on the defendants, the suit can be dismissed but the plaint cannot be rejected.'
In the said case the question of Court-fee was not at all involved. Therefore, it will not throw any light on the facts of the present case.
8. Sri Varadachar then referred me to Bai Vasanti v. Surya prasad Ishvarlal Patel., : AIR1969Guj152 It was a case where a compromise memo was filed by the parties regarding the mesne profits. By that compromise the plaintiff was required to pay Court-fee within a particular date. The plaintiff did not pay the Court-fee within that particular time. However, the decree came to be drawn up after the expiry of statutory period prescribed for suing out the execution. While considering the question of limitation the Gujarat High Court made a distinction between the passing of the decree and drawing up of the decree. The Gujarat High Court said that the moment the judgment is delivered, the decree is deemed to be passed. It is only the drawing up of the decree that is postponed. The decree in the said case was drawn up after the expiry of the statutory period prescribed for suing out the execution. The Court held that the date when the decree was drawn up, was not the material date for determining the question of limitation. It held that the date on which the compromise was entered into, was the material date for considering the question of commencement of the period of limitation. This ruling also will not throw up any light on the facts of the present case. Sri. Varadachar submitted that the Court can order a decree to be drawn up subject to the payment of Court-fee. Perhaps the said argument owes its existence to Section 10 of the Central Court-Fees Act which reads :
'10. Procedure where net profits or market-value wrongly estimated :-
i) If in the result of any such investigation the Court finds that the net profits or market-value have or has been wrongly estimated, the Court, if the estimation has been excessive, may in its discretion refund the excess paid as such fee : but, if the estimation has been insufficient, the Court shall require the plaintiff to pay so much additional fee as would have been payable had the said market-value or net profits been rightly estimated.
ii) In such case the suit shall be stayed until the additional fee is paid. If the additional fee is not paid within such time as the Court shall fix, the suit shall be dismissed.'
Thus, Indian Court-Fees Act makes a provision for the dismissal of the suit itself if the additional Court-fee is not paid. Section 11(2) of The Karnataka Court-Fees and Suits Valuation Act, 1958 makes a departure from the principle laid down in Section 10 of the Indian Court-Fees Act. Section 11(2) leaves no discretion to the Court but to reject the plaint if the deficit fee is not paid within the time allowed, whereas the Central Act empowers the Court to dismiss the suit) Therefore the argument advanced by learned Counsel Varadachar does not appeal to me in the least. The words, 'shall be' in Section 11(2) of The Karnataka Court-Fees and Suits Valuation Act, 1958 leave no discretion with the Court.
9. The trial Court appears to have been inspired by Order 12, Rule-6 C.P.C. which reads :
'6. (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under Sub-rule(l) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.'
Order 12, Rule 6 speaks about the determination of any other question 'between the parties'. The question of Court-Fee is not a matter between the parties. It is a matter between a party and the State. Therefore Order 12, Rule 6 would not apply in such cases. A suit cannot be properly instituted until the deficit Court-fee is paid. The question of passing a decree would arise only if the suit is properly instituted. So long as deficit Court-fee is not paid the suit cannot be said to be properly instituted at all. Therefore Order 12, Rule 6 also will not be applicable to the facts of the present case where the question of payment of deficit Court-fee is involved.
10. Therefore, under these circumstances, the Court-below committed an error in passing the decree. This is an unusual case where the plaintiff himself feels aggrieved by a decree passed in his favour. As already indicated above, the mischief appears to be quite obvious. His request for specific; performance was rejected. Now by some means or the other he wants to pursue the remedy for specific performance. Whether the law would permit him to do so or not is altogether a different matter.
11. In the result, the judgment and decree passed by the Court-below ordering the drawing up of a decree is set aside and the revision is allowed. The plaint is rejected. The plaintiff shall pay the costs of the suit to the defendant in the trial Court as well as in the revision and should bear his own throughout.