- (1.) B. S. Chauhan, J. This writ petition has been filed seeking a direction to the learned Civil Judge (Senior Division), Kanpur Nagar to expedite the trial of the Suit No. 378 of 2000, Ram Krishna Dhandhania & Anr. v. Prem Shanker Pandey & Anr. , which is not taking any progress in view of the objections raised by the defendant- respondents in respect of the payment of Court fees.
(2.) THE facts and circumstances giving rise to this case are that the petitioners are purchaser of the property in dispute in which the defendants 2 and 3 had been tenants. At the time of purchasing the said property, petitioners entered into an agreement with the said defendant-respondents to allot them the area equivalent to 50% of the total area which had been in their possession prior to purchase of the said property. Certain amount of security has been deposited with the said defendant- respondents till the construction is completed and the possession is handed over to them after reconstruction. In that agreement, it was mentioned that the said defendants had been in possession to the extent of 1550 Sq. ft. However, subsequently, it was found that they were in possession of only 485 sq. Ft. Thus, rectification of the Deed was sought and as it was not made, the petitioners-plaintiffs filed the suit for rectifying the said agreement on various grounds. Written statement and replications have been filed; 12 issues have been framed and two of them relate to the payment of Court fee, namely (1) whether the suit is undervalued and (2) whether the Court fee paid is insufficient. THEse issues have been decided as a primary issues in view of the provisions of Order XIV Rules 1 and 2 of the Code of Civil Procedure (hereinafter called the 'c. P. C. ') vide order dated 22-1-2004. By consent of the parties valuation of the suit stood enhanced and the petitioner-plaintiffs deposited the required Court fee on the valuation agreed by the parties. However, application was filed by the defendant-respondents to recall the said order and to re-determine the whole issue. THE trial Court after hearing the learned Counsel for the parties on the said application and objections, rejected the application by an order dated 18-9-2004, which is quoted below: "18-9-2004, Case called out. Parties Counsels are present. Application 90c to recall the order dated 21- 8-2004. It is filed by the defendant. Opposed Objection is 91-C, Heard. Order dated 21-8-2004 has been passed after hearing both the learned Counsels of the parties. Reported submitted by the Munsarim has been accepted by the Court. Hence, it cannot be reagitated in this Court. Application 90-C, therefore, is rejected. Fix 11-10-2004 for evidence. " Again, the defendants-respondents filed another application to recall the said order, which is still pending. As the petitioner-plaintiffs feel that the suit is being delayed on one ground or the other, they have approached this Court by filing this writ petition for a direction to expedite that trial of the suit.
(3.) THE petition could have been disposed of with a direction to the Court concerned to expedite the trial of the suit but Mr. P. K. Srivastava, learned Counsel for the petitioners submitted that it would be better to clarify the legal position so that the learned trial Court may proceed and decide the said application. Notices have not been issued to the defendant-respondents, as we are not deciding the issue on facts. THE issue for determination is as to whether the defendant-respondents have any right to challenge the adequacy of Court fee paid by the plaintiff- petitioners in the suit. The issue is required to be decided in view of the provisions of the Court Fee Act, 1870 (as amended, updated and applied in the State of U. P.) read with Section 149 and Order VII Rule 11, CPC.;