Devi Prasad Singh, J. - (1.) Heard Sri N.K. Seth, learned Counsel for the petitioner as well as Sri P.S. Mehra, learned Counsel for opposite party No. 3 who has filed Counter Affidavit which is taken on record. Notices has been accepted by learned Chief Standing Counsel on behalf of opposite parties Nos. 1 & 2. Plaintiff-respondent has filed a suit for delivery of possession of the accommodation situated at House No. 28, Jagat Narain Road, Golaganj, Lucknow. After service of notice, defendant-respondent has filed objection under Section 6 of the Court Fees Act, 1870 with the prayer that the plaintiff may be directed to pay the ad-valorem Court fees in view of the provisions contained in subsection 5 of Section 7 of the Court Fees Act. Copy of the plaint has been filed as Annexure No. 1 to the writ petition. Copy of the objection filed by the petitioner has been filed as Annexure No. 2 to the writ petition. The learned Trial Court after providing the opportunity of hearing to the parties, arrived to the conclusion that issue relating to the Court fees can be raised after filing of Written Statement and framing of issues. Feeling aggrieved with the order passed by the trial Court dated 2.12.2004, petitioner has preferred a revision which has been dismissed by the Incharge District Judge, Lucknow vide order dated 8th of February, 2005. Incharge Learned District Judge, Lucknow observed that after filing of written statement, firstly issues are to be framed and only thereafter, controversy relating to insufficient Court fees should be dealt with.
(2.) Sri N.K. Seth, learned Counsel for the petitioner while assailing the impugned orders submits that petitioner has moved an application under Section 6 of the Court Fees Act and it was incumbent on the trial Court first to decide application and direct the plaintiff to pay the deficiency of Court fees in pursuance to the provisions contained under sub-section 5 of the Section 7 of the Court Fees Act. According to petitioner's Counsel, since petitioner has claimed for delivery of possession, he is liable to pay the ad valorem Court fees in pursuance to the provisions contained in sub-section 5 of Section 7 of the Court Fees Act. Learned Counsel for the petitioner has invited attention of the Court towards Section 6 of the Court Fees Act and proceeded to submit that before deciding the issue relating to the Court fees and also before making the Court fees good, the Trial Court can not proceed with the suit in question. It was incumbent on the plaintiff first to pay the entire Court fees in accordance to the provisions contained in sub-section 5 of the Section 7 of the Act and only thereafter to proceed with the suit. Section 6 of the Court Fees Act, 1870 is reproduced as under: "6. Fees on documents filed etc. in Munsif Courts or in Public Office (1) Except in the Courts hereinbefore mentioned, no document of any kinds 4 specified as chargeable in the first of second Schedule to this Act annexed shall be filed, exhibited or recorded in any Court of Justice, or shall be received or furnished by any public officer, unless in respect of such document there be paid a fee of an amount not less than that indicated by either of the said Schedules as the proper fee such document. Provided that where such document relates to any suit, appeal or other proceedings under (any relating to land tenures or land revenue) the fee payable shall be three quarters of the fee indicated in either of the said Schedules except where the amount or value of the subject matter of the suit, appeal or proceedings to which it relates to exceeds Rs. 500. Provided further that the fee payable in respect of any such document as is mentioned in the foregoing proviso shall not be less than one and one fourth of that indicated by either of the said Schedules before the first day of may, 1936. (Explanation) - Where the amount of fee prescribed in the Schedules contain any fraction of a rupees below (twenty five naye paisa) or above (twenty five nay paisa) but below (fifty naye paisa) or above (fifty naye paisa) but below (seventy five naye paisa) or above (seventy five naye paisa) but below one rupee, the proper fee) shall be an amount rounded off to the text higher quarter of a rupee as hereinafter appearing in the said Schedules) (2) Notwithstanding the provisions of sub-section (1), a Court may receive plaint or memorandum of appeal in respect of which an insufficient 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 fees within such time as may from time to time be fixed by the Court. (3) If a question of deficiency in Court fee in respect of any plaint or memorandum or appeal is raised by an officer mentioned in Section 24-A the Court, shall before proceeding further with the suit or appeal record, a finding whether the Court fee paid is sufficient or not. If the Court finds that the Court fee paid is insufficient, it shall call upon 4 the plaintiff or the appellant, as the case may be, to make good the deficiently within such time as it may fix, and in case of default shall reject the plaint or memorandum of appeal. Provided that the Court may, for sufficient reasons to be recorded, proceed with the suit or appeal if the plaintiff or the appellant, as the case may be, gives security, to the satisfaction of the Court, for payment of the deficiency in Court fee within such further time as the Court may allow. In no case, however, shall judgment be delivered unless deficiency in Court fee has been made good, and if the deficiently is not made good within such time as the Court may from time to time allow, the Court may dismiss, the suit or appeal. (4) Whenever a question of the proper amount of Court fee payable is raised or otherwise than under sub-section (3), the Court shall decide such question before proceeding with any other issue. (5) In the case the deficiency is made good within the time allowed by the Court, the date of the institution of the suit or appeal shall be deemed to be the date on which the suit was filed or the appeal presented. (6) In all cases in which the report of the officer referred to in sub-section (3) is not accepted by the Court, or copy of the findings of the Court together with a copy of the plaint shall forthwith be sent to the (Commissioner of Stamps). Sub-section 2 of the Section 6 provides that unless the Court fees is paid, a Court may receive plaint or memorandum of appeal, but the Court shall not proceed ahead unless the Court fee is being paid in accordance to the provisions contained under the Act. The sub-section 4 of Section 6 of the At further provides that when question of improper amount of Court fee is raised, the Court shall decide such question before proceeding with any other issue. Learned Counsel for the petitioner has relied upon a judgment of this Court reported in 1985 (3) LCD 130, Amar Nath Agarwal v. (Shri) Avinash Agarwal. For convenience, Para 5 and 7 of Amar Nath Agarwal's case (supra) is reproduced as under: "Para 5: The decision in Sri Rathnavarmaraja (supra) is not applicable to the case because in that case the trial Court had decided the issue of Court fee. If the trial Court decides the issue of Court fee then it is only plaintiff who can file an appeal against that decision and not the defendant. In the instant case, however, the grievance is that the trial Court has failed to decide the issue. The trial Court's reliance on this authority cannot thus be said to be correct. In Baijnath Prasad v. Tejpal (AIR 1941 Allahabad 55) it was pointed out that delivering one judgment in the case dealing with the question of Court fees and with the question of the right of the parties as regards the subject matter of the suit is not proper as this procedure was in flagrant violation of the provisions of Section 6(4) of the Court Fees Act. It creates complications as pointed out in that ruling, e.g. if Court fee is found insufficient and the plaintiff fails to make good the deficiency then the question will arise whether he could appeal under Section 6-A of the Court Fees Act on the issue of Court fee alone or could also appeal under Section 96 Code of Civil Procedure against the decision merits. In that case their Lordships struck out the other grounds in the memorandum of appeal which deal with the merits of the case as superfluous and confined the appeal to the question of the sufficiency of Court fee. It was also observed that the attention of the Courts/below should be drawn to the imperative necessity of faithfully following the provisions of clauses (2), (3) and (4) of Section 6 of the Court Fees Act so that the anomalies of the description which their Lordships had to deal in the case before them may not arise in future. Para 7 : In this view of the matter the revision is allowed subject as aforesaid, and the order dated 22.11.1984 is set aside and the Trial Court is directed to decide the question of sufficiency of Court fees as required by Section 6(4) of the Court Fees Act before proceeding further with the case."
(3.) On the other hand submission of the learned Counsel for the respondent is that unless are framed in pursuance to the provisions contained in Order XIV of the Code of Civil Procedure, the question relating to payment of Court fees can not be adjudicated. The further submission of the respondent's Counsel is that payment of Court fee should be decided as the preliminary issue after filing of the written statement by the defendants.;