S.K.MAL LODHA, J. - (1.)This order will decide an important question relating to payment of court-fee-on an appeal under S.18(1) of the Rajasthan High Court Ordinance, 1949 (for short "the Ordinance") against the judgment of a learned single Judge passed in an appeal under S.96, Civil P. C.
(2.)We may, succinctly, recount the facts, which are necessary for deciding the question. The plaintiffs-respondent's suit for specific performance of an agreement was dismissed by the District Judge, Pali, vide judgment and decree dt. June 4, 1983. The plaintiffs filed appeal in this court under S.96 of the Civil P. C. Learned single Judge, by his judgment dated Nov. 17, 1983, accepted the appeal, set aside judgment and decree dt. June 4, 1963 of the learned District Judge, Pali and decreed the plaintiffs' suit for specific performance of the agreement Ex. 2 and dt. April 25, 1967. A direction was made that the plaintiff shall deposit the purchase money amounting to Rs. 12,318.50 along with interest or rent within two months from the date of the judgment and on their so depositing the amount in the trial court, the defendants shall execute a sale-deed in respect of the shop in dispute in favour of the plaintiffs and get it registered. Certain other directions were also made. Aggrieved by the judgment and decree passed in appeal under S.96. Civil P. C. of the learned single Judge, the defendants have filed this appeal under S.18(1) of the Ordinance. The valuation of the appeal was the same which was of the suit, namely, Rs. 12,316.50. A fixed court-fee of Rs. 10/- was paid on the memorandum of appeal. The appeal was filed on Jan. 28, 1984. Office reported on March 28, 1984 that on further checking it was revealed that learned counsel had not affixed the court-fee ad volarem against the decree and had paid the court-fee in accordance with Art.3(iii)(2)(a) of Sch. II of the Rajasthan Court-fees and Suits Valuation Act, 1961 (hereinafter referred to as "the Act"), but the court-fee as held in Sohanlal v. Tulcha ILR (1971) 21 Raj 566, payable on such memorandum of appeal is ad valoram in accordance with Art.1, Sch. 1 of the Act. As the deficit court-fee was not paid, the appeal has been listed for orders. Mr. M. C. Maheshwari, Additional Government Advocate has put in appearance, as the matter relates to the revenue of the State.
(3.)We heard Mr. H. M. Parekh and Mr. R. C. Maheshwari, Additional Govt. Advocate and Mr. R. Mehta for respondent (caveator) on the question of court-fee.