(1.) Present petition has been filed by the petitioners for quashing the order dated 21.02.2012 passed by the respondent no.1 in Civil Appeal no.65 of 2011 "Sardar Gurpreet Singh and another Vs. Sardar Tejender Singh and another".
(2.) Brief facts of the case, as narrated in the petition, are that plaintiffs/respondent nos.2 & 3 instituted Original Suit No.580 of 2001 "Sardar Tajender Singh Gambhir and another Vs. Sardar Gurpreet Singh and another" against the petitioners, seeking relief of prohibitory injunction, which was subsequently converted as a suit for declaration and possession inter-alia on the grounds that the plaintiffs are the owner-in-possession on the basis of Will dated 25.07.1996 executed by their predecessor and on the basis of family settlement reduced in form of MOU dated 29.05.1999. Regarding the same property, another Suit No.710 of 2001 "Sardar Tajender Singh Gambhir and another Vs. Sardar Gurpreet Singh and another" was also filed, seeking relief of injunction and possession. Both the suits were clubbed together. During the pendency of the Original Suit No.580 of 2001, an amendment seeking relief of declaration and possession was sought, which was allowed and consequently, incorporated/carried out in the plaint and a consequential amendment in the valuation of court fee paragraph was also sought, allowed and carried out. According to the enhanced amended valuation, plaintiffs were supposed to pay additional court fee of Rs. 7,520/-, as per the amended valuation. Despite without making deficiency good, the Court below proceeded with the suit and decreed the suit in favour of the plaintiffs. Aggrieved by the judgment and decree dated 11.06.2011, a regular Civil Appeal No.65 of 2011 "Sardar Gurpreet Singh and another Vs. Sardar Tajender and another" under Section 96 of C.P.C. was filed in the Court of District Judge, Dehradun, challenging the different findings, apart from challenging the non-payment of the additional court fee, and consequently, challenging the decree passed by the trial Court specifically in paragraph no.10 of the memo of appeal. The said appeal was subsequently transferred to the Court of respondent no.1. After receiving the notices of the appeal and after appearing before the Appellate Court, the plaintiffs/respondent nos.2 & 3 filed an application on 12.10.2011, seeking permission of the respondent no.1 to deposit the court fees of Rs. 7,520/-, which was otherwise required to be paid before the trial Court. The petitioners filed objections against the said application. Vide order-dated 21.02.2012, the respondent no.1 permitted the plaintiffs/respondent nos.2 & 3 to make good the deficiency of court fee. Against the order dated 21.02.2012 passed by the respondent no.1 in Civil Appeal No.65 of 2011 "Sardar Gurpreet Singh and another Vs. Sardar Tejender Singh and another", present petition has been filed by the petitioners.
(3.) Shri Siddhartha Singh, learned counsel for the petitioners submitted that it is a trite law that until and unless the proper court fee is paid and/or deficiency of court fee is made good, the case cannot proceed further and in absence to make the deficiency good, the plaint is liable to be rejected and dismissed for non compliance. He submitted that in the present controversy, without making deficiency good, the plaintiffs and the Court below proceeded with the suit that culminated in the decree in favour of plaintiffs, which by all legal fictions is nonest and nullity. He submitted that the respondent no.1 failed to appreciate that the Court Fees Act is undisputedly a taxing/fiscal statute, which requires to be interpreted strictly. He further submitted that while passing the order impugned, the respondent no.1 failed to consider Section 6 (2) and proviso of Section 6 (3) of the Court Fees Act. He submitted that whenever a question of proper amount of court fee payable is raised otherwise than under sub-section (3), the Court shall decide such question before proceeding with any other issue. He submitted that in the case in hand, neither the deficient court fee was paid/ deposited/made good nor any security was furnished, and the respondent no.1 ignored those factual and legal aspects, which resulted in passing of the order impugned. He also submitted that sub-section (3) of section 6 of the Court Fees Act provides that the judgment should not be delivered in absence of payment of proper court fee and further says of dismissal of suit in absence of making deficiency good. He argued that after receiving the notices of the appeal and after appearing before the Appellate Court, plaintiff/respondent nos.2 & 3 kept mum and all of a sudden woke up and filed an application on 12.10.2011, seeking permission of the respondent no.1 to deposit the court fee of Rs. 7,520/-, which was otherwise required to be paid before the trial Court. The petitioners filed the detailed objections on the ground that the deficiency of court fee can be made good in the trial Court and in no manner can be made good during the appellate stage, since it requires an amendment in decree and in absence of payment of court fee, the judgment and decree passed by the original Court stands vitiated, nonest. He contended that the respondent no.1 failed to appreciate that provisions of Section 148, Section 149 and Section 151 of C.P.C. applies in the trial Court, which are enabling sections/provisions. He submitted that in any case, if no time period is prescribed by the trial Court for making deficiency good, then it is the period of 14 days, as per General Rule (Civil). He also submitted that the respondent no.1 failed to appreciate that the provision of Section 149 of C.P.C. can be invoked only in exceptional contingencies, not as a matter of routine. If plaintiffs are permitted to file/pursue the case in absence of payment of proper/required court fee (except in case of proper, where provision of Order 33 C.P.C. applies), then all litigants would persue their case without paying required court fee. In case plaintiffs lose the case and do not prefer appeal, they would be at liberty to evade payment leading to revenue loss to State. He further argued that the respondent no.1 failed to exercise the jurisdiction vested in him by law ignoring his duty and obligation, since the trial Court is competent suo-moto to reject the plaint, as per the requirement of Order 7 Rule 11 (b), (c) of C.P.C. He submitted that due to noncompliance of order of the trial Court to make the deficiency of court fee good, a right had occurred to the defendants, since the subsequent proceedings, after amendment, became nonest, null and void, but by passing the order impugned, respondent no.1 had turned upside down, which is vitiated in the eyes of law. He further submitted that respondent no.1 has exercised his jurisdiction with material irregularity, which has led to the passing of order impugned, since the plaintiffs cannot be permitted to obtain the relief from the Court and then, subsequently pay the court fee. In contra, if plaintiffs fail, then they would be avoiding the payment of court fee, which in turn leads to the loss to the exchequer. He submitted that proceedings of the trial Court, after the aforesaid amendment, due to non-payment of additional court fees, stood vitiated. He contended that it was the duty of the plaintiffs, after amending their plaint, valuation clause and relief clause, to pay the additional court fee inspite there being any objection to that effect from the Court and/or officer of the Court and/or the defendants. He argued that legally in absence of payment of required court fee, may be due to over site or malafidely/ulterior motive, the subsequent proceeding, after the said amendment, were not permissible and a nullity. He submitted that the defendants cannot be blamed for not filing an application under Order 7 Rule 11 C.P.C. in absence of payment of additional court fee, more particularly, when the provision of Order 7 Rule 11 C.P.C. can be invoked by the Court suo-moto. He contended that in the present context, deficiency of court fee was not made good even at the time of passing of decree by the trial Court and even immediately thereafter. It would have been a bonafide on the part of respondent nos.2 & 3 had they deposited the deficient court fee immediately after coming to know of it in the decree, but it is not so in the case in hand. Learned counsel for the petitioners lastly submitted that the impugned order passed by the respondent no.1 would be bad precedent, if allowed to stand and would lead to filling of suits, continuation of suit without payment of court fees at the right time.;