Piara Singh Vs. Ajmer Singh and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1072028
CourtPunjab and Haryana High Court
Decided OnSep-02-2013
AppellantPiara Singh
RespondentAjmer Singh and Others
Excerpt:
cr no.6103 o”1. in the high court of punjab & haryana at chandigarh ***** cr no.6103 of 2012 date of decision : september 02, 2013 ***** piara singh ............petitioner versus ajmer singh and others ...........respondent ***** coram: hon'ble mr.justice l.n mittal ***** present: ms.puja chopra, advocate for the petitioner. mr.g.s bhatia, advocate for respondent no.1. ***** l.n mittal, j (oral) piara singh, who was appellant no.1 before the lower appellate court, has filed this revision petition under section115 of the code of civil procedure (cpc) assailing orders dated 6.8.2012 passed by the lower appellate court thereby dismissing application filed by the petitioner and proforma respondent no.20 (appellants before the lower appellate court ) for permission to deposit the court fee for the firs.appeal and consequently thereby also rejecting the appeal due to insufficient court fee. suit filed by respondent no1-plaintiff against the petitioner and proforma respondents no.2 to 20 was decreed by the trial court kukreja ritu vide judgment and decree dated 18.9.2008 (annexure p-2).2013.09.04 10:37 i attest to the accuracy and integrity of this document chandigarh cr no.6103 o”2. defendant no.1-piara singh-petitioner and defendant no.4-bikkar singh-proforma respondent no.20 filed firs.appeal against the said judgment and decree. during the pendency of the appeal, the said appellants filed application annexure p-1 for permission to deposit the requisite court fee for the firs.appeal alleging that proper court fee could not be affixed on the appeal while filing it due to oversight. it was also pleaded that even official of the court had made report (before issuance of notice to the opposite party) that proper court fee had been affixed. the application was opposed by respondent no.1-plaintiff. the averments made in the application were controverted. learned trial court vide impugned orders dated 6.8.2012, dismissed the aforesaid application and consequently rejected the appeal for insufficient court fee. feeling aggrieved, appellant no.1 in the lower appellate court has filed the instant revision petition to challenge the said orders.i have heard the learned counsel for the parties and perused the case file. counsel for the petitioner contended that in view of section 107(2) and section 149 and order 7 rule 11 cpc, appellate court has power to give time to the appellant to pay the deficient court fee. reliance in support of this contention has been placed on a judgment of hon'ble supreme court in mohammad manibulla vs seth chamal lal (dead ) by lr s 1992(1) plr 34.and two judgments of this court in punjab national bank vs lord krishan kukreja ritu 2013.09.04 10:37 i attest to the accuracy and integrity of this document chandigarh cr no.6103 o”3. paper industries, 1999(3) rcr (civil) 674, haryana state and another vs geeta devi and another 2006(1) rcr (civil) 740. on the other hand, counsel for respondent no.1-plaintiff contended that the appeal had been filed in the year 2008 whereas the application (annexure p-1) was filed in the year 2012 and the alleged error in not affixing proper court fee on the appeal was not bona fide. it was argued that permission to pay the deficient court fee on firs.appeal has been rightly declined by the lower appellate court. reliance has been placed on judgments of this court in m/s ajey textile and others vs the british india corporation and others (1970) 2 ilr punjab and haryana 127, jabar singh vs shadi and others.1975 plr 18.and smt. krishna kumar vs ashwani kumar and others.1998 (1) civil court cases 159 (p&h) and judgment of hon'ble supreme court in buta singh (dead) by lrs vs union of india, air 199.sc 1945. i have carefully considered the rival contentions. in view of categorical judgment of hon'ble supreme court in the case of mahammad manibulla (supra).it would be appropriate to give an opportunity to the appellants to deposit the court fee for firs.appeal on payment of costs. it has been clearly held in the said judgment that the appellate court has power to grant an opportunity to the appellant to pay requisite court fee for the appeal. following the same judgment, this court in the cases of punjab national bank (supra) and haryana state (supra) has also allowed opportunity to the appellants to pay court fee in appeal. consequently, in the kukreja ritu 2013.09.04 10:37 i attest to the accuracy and integrity of this document chandigarh cr no.6103 o”4. instant case also, the ends of justice would be met if the appellants in the lower appellate court are permitted to deposit court fee for the appeal on payment of costs. judgments cited by counsel for respondent no.1 are not attracted to the facts of the instant case. in the cases of ajey textile's (supra) and jabar singh (supra).it was not laid down that appellate court has no power to give opportunity to the appellant to deposit court fee. on the contrary, it was held that such an opportunity can be given to the appellant if mistake of the appellant was bona fide. consequently ratio of these judgments is also to the same effect that the appellate court has power to give opportunity to the appellant to deposit court fee. judgment in the case of smt. krishna kumar (supra) relates to rejection of original plaint under order 7 rule 11 cpc and does not relate to deposit of court fee in appeal. consequently, the said judgment has no applicability to the instant case. judgment of hon'ble supreme court in the case of buta singh (supra) was in completely different set of facts and circumstances. in that case, in firs.appeal in land acquisition proceedings, the appellant initially kept the claimed amount to be low and paid less court fee, but after hearing of arguments, on gaining impression that the appeals were likely to be allowed, appellant sought to enhance the claimed amount in the appeal by paying enhanced court fee. this method adopted by the appellant in that case was not approved by the apex court and appellant was held entitled to compensation to the extent of court fee already paid. kukreja ritu 2013.09.04 10:37 i attest to the accuracy and integrity of this document chandigarh cr no.6103 o”5. consequently, this judgment has no bearing on the facts of present case. on the contrary, in view of the judgments cited by counsel for the petitioner, i am of the considered opinion that an opportunity should be given to the appellants for paying the deficient court fee but subject to payment of heavy costs. resultantly, the instant revision petition is allowed. impugned orders dated 6.8.2012 passed by the lower appellate court are set aside. application (annexure p-1) filed by the appellants before the lower appellate court is allowed and they are permitted to deposit the court fee on firs.appeal subject to payment of rs.10,000/- as costs to respondent no.1-plaintiff. the appeal file is restored to the files of the lower appellate court. parties are directed to appear before the lower appellate court on 23.9.2013. the appellants before the lower appellate court shall pay the requisite court fee on or before 30.10.2013 failing which the firs.appeal shall automatically stand rejected due to not payment of court fee. september 02, 2013 ( l.n mittal ) ritu judge kukreja ritu 2013.09.04 10:37 i attest to the accuracy and integrity of this document chandigarh
Judgment:

CR No.6103 o”

1. IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH ***** CR No.6103 of 2012 Date of decision : September 02, 2013 ***** Piara Singh ............Petitioner Versus Ajmer Singh and others ...........Respondent ***** CORAM: HON'BLE Mr.JUSTICE L.N MITTAL ***** Present: Ms.Puja Chopra, Advocate for the petitioner.

Mr.G.S Bhatia, Advocate for respondent no.1.

***** L.N MITTAL, J (ORAL) Piara Singh, who was appellant no.1 before the Lower appellate Court, has filed this revision petition under Section115 of the Code of Civil Procedure (CPC) assailing orders dated 6.8.2012 passed by the lower Appellate Court thereby dismissing application filed by the petitioner and proforma respondent no.20 (appellants before the lower Appellate Court ) for permission to deposit the court fee for the fiRs.appeal and consequently thereby also rejecting the appeal due to insufficient court fee.

Suit filed by respondent no1-plaintiff against the petitioner and proforma respondents No.2 to 20 was decreed by the trial Court Kukreja Ritu vide judgment and decree dated 18.9.2008 (Annexure P-2).2013.09.04 10:37 I attest to the accuracy and integrity of this document Chandigarh CR No.6103 o”

2. Defendant no.1-Piara Singh-petitioner and defendant No.4-Bikkar Singh-proforma respondent no.20 filed fiRs.appeal against the said judgment and decree.

During the pendency of the appeal, the said appellants filed application Annexure P-1 for permission to deposit the requisite court fee for the fiRs.appeal alleging that proper court fee could not be affixed on the appeal while filing it due to oversight.

It was also pleaded that even official of the Court had made report (before issuance of notice to the opposite party) that proper court fee had been affixed.

The application was opposed by respondent no.1-plaintiff.

The averments made in the application were controverted.

Learned trial Court vide impugned orders dated 6.8.2012, dismissed the aforesaid application and consequently rejected the appeal for insufficient court fee.

Feeling aggrieved, appellant No.1 in the lower Appellate Court has filed the instant revision petition to challenge the said ordeRs.I have heard the learned counsel for the parties and perused the case file.

Counsel for the petitioner contended that in view of Section 107(2) and Section 149 and Order 7 Rule 11 CPC, Appellate Court has power to give time to the appellant to pay the deficient Court fee.

Reliance in support of this contention has been placed on a judgment of Hon'ble Supreme Court in Mohammad Manibulla vs Seth Chamal Lal (dead ) by LR s 1992(1) PLR 34.and two judgments of this Court in Punjab National Bank vs Lord Krishan Kukreja Ritu 2013.09.04 10:37 I attest to the accuracy and integrity of this document Chandigarh CR No.6103 o”

3. Paper Industries, 1999(3) RCR (Civil) 674, Haryana State and another vs Geeta Devi and another 2006(1) RCR (Civil) 740.

On the other hand, counsel for respondent no.1-plaintiff contended that the appeal had been filed in the year 2008 whereas the application (Annexure P-1) was filed in the year 2012 and the alleged error in not affixing proper court fee on the appeal was not bona fide.

It was argued that permission to pay the deficient Court fee on fiRs.appeal has been rightly declined by the lower Appellate Court.

Reliance has been placed on judgments of this Court in M/s Ajey Textile and others vs The British India Corporation and others (1970) 2 ILR Punjab and Haryana 127, Jabar Singh vs Shadi and otheRs.1975 PLR 18.and Smt.

Krishna Kumar vs Ashwani Kumar and otheRs.1998 (1) Civil Court Cases 159 (P&H) and judgment of Hon'ble Supreme Court in Buta Singh (dead) by LRs vs Union of India, AIR 199.SC 1945.

I have carefully considered the rival contentions.

In view of categorical judgment of Hon'ble Supreme Court in the case of Mahammad Manibulla (supra).it would be appropriate to give an opportunity to the appellants to deposit the Court fee for fiRs.appeal on payment of costs.

It has been clearly held in the said judgment that the Appellate Court has power to grant an opportunity to the appellant to pay requisite Court fee for the appeal.

Following the same judgment, this Court in the cases of Punjab National Bank (Supra) and Haryana State (Supra) has also allowed opportunity to the appellants to pay Court fee in appeal.

Consequently, in the Kukreja Ritu 2013.09.04 10:37 I attest to the accuracy and integrity of this document Chandigarh CR No.6103 o”

4. instant case also, the ends of justice would be met if the appellants in the Lower Appellate Court are permitted to deposit Court fee for the appeal on payment of costs.

Judgments cited by counsel for respondent no.1 are not attracted to the facts of the instant case.

In the cases of Ajey Textile's (supra) and Jabar Singh (supra).it was not laid down that Appellate Court has no power to give opportunity to the appellant to deposit Court fee.

On the contrary, it was held that such an opportunity can be given to the appellant if mistake of the appellant was bona fide.

Consequently ratio of these judgments is also to the same effect that the appellate Court has power to give opportunity to the appellant to deposit court fee.

Judgment in the case of Smt.

Krishna Kumar (supra) relates to rejection of original plaint under Order 7 Rule 11 CPC and does not relate to deposit of Court fee in appeal.

Consequently, the said judgment has no applicability to the instant case.

Judgment of Hon'ble Supreme Court in the case of Buta Singh (Supra) was in completely different set of facts and circumstances.

In that case, in fiRs.appeal in land acquisition proceedings, the appellant initially kept the claimed amount to be low and paid less Court fee, but after hearing of arguments, on gaining impression that the appeals were likely to be allowed, appellant sought to enhance the claimed amount in the appeal by paying enhanced Court fee.

This method adopted by the appellant in that case was not approved by the Apex court and appellant was held entitled to compensation to the extent of Court fee already paid.

Kukreja Ritu 2013.09.04 10:37 I attest to the accuracy and integrity of this document Chandigarh CR No.6103 o”

5. Consequently, this judgment has no bearing on the facts of present case.

On the contrary, in view of the judgments cited by counsel for the petitioner, I am of the considered opinion that an opportunity should be given to the appellants for paying the deficient Court fee but subject to payment of heavy costs.

Resultantly, the instant revision petition is allowed.

Impugned orders dated 6.8.2012 passed by the Lower Appellate Court are set aside.

Application (Annexure P-1) filed by the appellants before the lower Appellate Court is allowed and they are permitted to deposit the Court fee on fiRs.appeal subject to payment of Rs.10,000/- as costs to respondent no.1-plaintiff.

The appeal file is restored to the files of the lower Appellate Court.

Parties are directed to appear before the lower Appellate Court on 23.9.2013.

The appellants before the Lower Appellate Court shall pay the requisite Court fee on or before 30.10.2013 failing which the fiRs.appeal shall automatically stand rejected due to not payment of Court fee.

September 02, 2013 ( L.N MITTAL ) ritu JUDGE Kukreja Ritu 2013.09.04 10:37 I attest to the accuracy and integrity of this document Chandigarh