Decided on January 01,1980

PATIRAM Respondents


A.R.NAVKAR, J. - (1.)THIS is an appeal under section 100 of the Code Civil Procedure against the judgment and decree dated 19 -7 -1979 passed by the First Additional District Judge Gwalior, in Civil Appeal No 68 -A/78, disallowing to extend time for the purpose of court fees under section 149 C.P.C. and dismissing the appeal thereby upholding the judgment and decree dated 13 -1 -1978 of the Second Civil Judge Class II, Gwalior in civil suit. No. 88 -A of 1973.
(2.)THE plaintiff respondent Patiram filed a suit for eviction of a residential house on 15 -11 -1973 in occupation of the appellant defendant. In the suit it was stated that father of defendants was a tenant and he had executed a rent -note on 12 -4 -1968. After the death of the original tenant his legal representatives who are the defendants, became the tenants of the plaintiff, that the arrears of rent claimed were to the extent of Rs. 2,080. It was averred that this amount was not paid inspite of a notice of demand on the defendants Therefore, a decree on the grounds under section 12(1) (a) of the M. P. Accommodation Control Act 1961 (hereinafter referred to as the Act) along with section 12(1) (c) of the Act was asked by the plaintiff.
The defendants denied that they are the tenants of the plaintiff and they pleaded that the house in question is a joint Hindu Family property wherein the brothers of Khunnilal and Hiralal are also owners and are in possession of the suit house. The trial Court decreed the suit for arrears of rent as well as it upheld the grounds under section 12 (1) (a) and 12(1) (c) of the Act. It seems that the defendant filed an appeal only against the decree of eviction which was passed against them on the grounds mentioned above. But, they did not pay the court fees on the decree which was passed against them for arrears of rent. During the state of arguments in the appellate Court the plaintiff took an objection regarding the maintainability of the appeal for want of court -fees. It was also submitted that as the court -fees is not paid for a decree filed against arrears of rent, that decree has become final' and therefore, the appeal should be dismissed as not maintainable. When this objection was raised, the appellants submitted an application on 17 -5 -1979 under Order 7 rule 11 and section 149, C. P. C. along with an application under section 5 of the Limitation Act He also submitted an application under Order 47 rule 1. C.P.C. for a review of the order dated 16 -5 -1979. The deficit court -fees was also deposited by the appellant on 17 -5 -1979. The appellate Court by its judgment dismissed the application under section 149, C. P. C. and dismissed the appeal also. Against that Judgment, this appeal, has been filed.

(3.)THE only submission made before me is that the view taken by the appellate Court is very strict and it is not according to law.

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