Satish Chandra, J. - (1.) THIS is a Defendant's appeal. The trial court decreed the suit for possession, on the finding that the Defendant was a trespasser. Aggrieved, the Defendant filed an appeal. His case was that he was a tenant on a monthly rent of Rs. 2/ -. He valued the appeal at Rs. 94/ -, of which Rs. 24/ - represented the value of the premises and Rs. 70/ - the decree for damages. The trial court had, however, found that the premises had the market value of Rs. 1,570/ -. The Plaintiff -Respondent made an application that the appeal was under valued and the memorandum of the appeal was insufficiently stamped and it ought to be rejected as such. The learned Civil and Sessions Judge took up this matter as a preliminary point. He held that the decree had been passed on the finding that the Defendant was in an unlawful possession. The appeal which proceeded on the footing that the Defendant was in possession as a tenant, was not an appeal against the decree as such passed by the trial court. It was under -valued and also insufficiently stamped. He then observed : "And at this stage also the Appellant has not offered to amend the memo of appeal and to pay the balance of court fees." Ultimately, the Respondent's objection was sustained and the appeal was dismissed with costs. Aggrieved, the Plaintiff has filed the Second Appeal.
(2.) AT the threshold, Mr. Awashti, appearing for the Respondent, took a preliminary objection that no appeal lay. It was urged that an order dismissing a memorandum of appeal on the ground that it was under valued and insufficiently stamped is not a decree as defined by Section 2(2), Code of Civil Procedure. It is not an order, which has been made appealable Under Section 104 read with Order 43 Rule 1, Code of Civil Procedure. Hence, no appeal lay against the impugned order of the learned Civil and Sessions Judge, It is unnecessary to go into this controversy; because, in any case, the Defendant was entitled to come to this Court in Revision. On the merits, I am satisfied that Clause (c) of Section 115, Code of Civil Procedure is attracted. The impugned order dismissing the appeal was passed by the learned Judge on 12 -8 -1969. It appears that he had heard arguments earlier and reserved judgment. It is clear that the court had not granted any time to the Defendant -Appellant to make good the deficiency, before pissing the judgment on 12 -8 -1969. Soon after the pronouncement of this reserved judgment, the Defendant made an application on 14 -8 -1969, saying that he was always prepared to make good the deficiency if the court decided that the appeal was undervalued and insufficiently stamped and it was under some misapprehension that the court made the observation that, even at this stage, the Appellant has not offered to amend the memorandum of the appeal and to pay the balance of the court fee. This application was rejected on 19 -8 -1969. The learned Judge observed: The Applicant had throughout justified his valuing the appeal and regarding the payment of court fee. Had he offered to pay the court -fees, he would have moved an application for amendment of the memo and for an opportunity to pay up the deficiency. In my opinion, the learned Judge did not follow the statutory procedure.
(3.) UNDER Sub -section (2) of Section 6 of the UP Court fees Act, a court may receive a plaint or memorandum of appeal in respect of which an insufficient court fee has been paid, but no such plaint or memorandum of appeal shall be acted upon, unless the Plaintiff or the Appellant, as the case may be, makes good the deficiency in court -fee "within such time as may from time to time be fixed by the court." In the present case, the memorandum of appeal was presented before the District Judge. He accepted it, issued notice and transferred it to another Judge. It was later on that the matter that the appeal was under -valued and insufficiently stamped was raked up. Both the parties pressed their respective versions as to the correct valuation and the amount of court fee payable. Section 6(2) of the Court fees Act, in such a situation, required the Court to decide the controversy, to fix the valuation and the correct amount of court -fee payable and thereafter, to call upon the Appellant to make good the deficiency within a time to be fixed by it. Unless the Court so fixed the time, it could not dismiss the appeal for the simple reason that the Appellant had persisted in his own stand as to the correct valuation of the appeal. The dismissal of a memorandum of appeal cannot follow up as a penalty for undervaluing it, but as a penalty for not making good the deficiency after the Court had told the Appellant what the correct amount of the court -fee payable was. The court below ought to have, after it had pronounced the judgment, given time to the Appellant to make good the deficiency. If the Appellant failed to do so, then alone the order dismissing the appeal should have been parsed. 5 There is another angle to this matter. Section 6 -A of the Court fees Act confers a right of appeal on a person who is called upon to make good the deficiency in court -fee. This provision postulates an order calling upon the Appellant to make good the deficiency in court -fee. Without making such an order, the Court is not competent to dismiss an appeal. In the present case, the Court did not pass an order of this kind. It deprived the Appellant of his statutory right of appeal in relation to the question whether the appeal was properly valued and stamped. 6 In the result, the appeal is converted into a Revision. The revision succeeds and is allowed. The impugned order dated 12 -8 -1969, is set aside. The lower appellate court would now pass an order calling upon the Appellant to pay the requisite court fee and fixing the time within which the Appellant may comply with that order. In the circumstances, the parties would bear their own costs. The record may be sent down forthwith.;