MOHAMMAD MAHIBULLA Vs. SETH CHAMAN LAL

JUDGEMENT

(1.) The Punjab Wakf Board, the appellant in this second appeal, filed the suit out of which the appeal arises for declaration and possession. Court-fee of Rs. 15.00 was paid under Notification No. 8215-Stamps-II-61/8786, dated October 3, 1961, issued under Section 35 of the Court fees Act. The suit was dismissed by the trial Court. An appeal was presented to the learned Additional District Judge, Karnal. Once again Court-fee of Rs. 15.00 only was paid. The defendant-respondents raised as objection that the Notification was not applicable to appeals and proper Court-fee should be paid on the value of the appeal, which was Rs. 5,000/-. The objection was upheld by the learned Additional District Judge and the appeal was dismissed. In this second appeal the learned counsel for the appellant argues that an appeal being but a continuation of the suit, the same Court-fee was to be paid on the memorandum of appeal as on the plaint. There is no substance in this submission. Schedule I Article 1 of the Court fees Act provides that Court-fee is to be paid on ad valorem basis, both on plaints and memorandum of appeal. The exemption granted by the Notification being applicable to plaints only, the appellant could not claim the benefit of the exemption when it sought to file appeal before the Lower Appellate Court. Shri N.C. Jain, learned counsel for the appellant relied upon the decision in Mandir Mausume and others v. Taxing Officer and others,1971 PunR 793. This decision has no application whatsoever. The question decided therein was whether Court-fee had been properly paid under Article 17(6) of the Schedule II of the Act. In the alternative the learned counsel for the appellant submitted that the appellant should have been given an opportunity to make good the deficit Court-fee. He urged that the Appellate Court was bound to give such an opportunity to the appellant and relied upon the provisions of Order 7 Rule 11 of the Code of Civil Procedure. It seems to be the view of this Court and the Lahore High Court Tipper Chand Dhanpat v. Matu Ram and others, 1970 AIR(P&H) 273 and Balwant Singh v. Jagjit Singh,1947 AIR(Lah) 210 that Order 7 Rule 11 does not in terms apply to memoranda of appeals and where the memoranda of appeal was presented with deficit Court-fee, the Court may grant time under Section 149 of the Code of Civil Procedure in exercise of its discretion. There is nothing to show that the appellant made a request to the lower Appellate Court to grant time for payment of deficit Court-fee. I do not think that I will be justified in granting time at this belated stage.

(2.) The second appeal is, therefore, dismissed. No costs.