- (1.) RAJIV Sharma, J. Heard learned Counsel for the parties.
(2.) BY means of instant writ petition, the writ petitioner has sought the quashing of the order dated 22nd August, 1989 passed by the Addl. Civil Judge, Sitapur in suit No. 112 of 1986 [m/s Prasad Enterprises v. M/s Bharat Electricals and others]. M/s Prasad Enterprises opposite party No. 2 in the present writ petition instituted a suit for the recovery of Rs. 12,79,619. 12 paise in the Court of the Civil Judge, Sitapur against the petitioners by paying a Court fee of Rs. 5/- only. The Munsarim of the Court submitted the suit for presentation with following report; "court fee payable on the plaint under Schedule-l Article-l comes to Rs. 12,500. 00 but the plaintiff has paid at presently a Court fee of Rs. 5/ -. In this way there is a deficiency in Court fee with Rs. 12. 495/- for which he has moved a separate application for time to make up the aforesaid deficiency. Plaintiff has not file papers. Put up before P. O. for orders. The suit is liable to be registered as Misc. Case. " Learned Counsel for the petitioner has submitted that Schedule-l of Article-1 of the Court Fee Act, 1870 has. been amended by U. P. Act No. 44 of 1958. By the said amendment the provisions of maximum Court Fee of Rs. 12. 500/- was deleted and a chart for the Court fees upto the valuation upto Rs. 10,000/- and above has been inserted. As per amendment, on ten thousand rupees the fee payable under clause (vi), and on the remainder, thirty seven rupees and fifty naya paise for every five hundred rupees or part thereof.
(3.) ELABORATING his arguments, learned Counsel submitted that in view of Order 7 Rule 11 of the Code of Civil Procedure, a plaint which is insufficiently stamped is liable to be rejected unless the deficiency in the Court fee is made good within the period prescribed by the Court. Moreover, under Section 6 (2) of the Court Fees Act it is clearly provided that the Court may receive a plaint or memorandum of appeal having deficiency in Court fee 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 the prescribed period. It is in this background that the petitioners, on receiving summons, made an application under Order 7 Rule 11 of the Code of Civil Procedure for rejection of the plaint but instead of deciding the said application, the Court concerned passed an order to the effect that the application 17c shall be disposed of alongwith the suit and fixed a for filling written statement and issues. Aggrieved by the order dated 31st May, 1988 passed by the Civil Judge, Sitapur, the petitioners preferred a Civil Revision before this Court bearing Civil Revision No. 92 of 1988. The said Revision was allowed on 3. 11. 1988 by this Court and the relevant portion of the judgment reads as follows: "when objection was raised that Court fee was insufficient and the Court was duty bound to proceed and enter into this question as so long there is no valid plaint before it there can be no proceedings, the Civil Judge committed jurisdictional error in not considering the applications moved by the applicant and deciding the pleas of insufficient Court fee paid. The revision application in these circumstances is allowed and the order dated 31. 5. 1988 passed by the Civil Judge is set-aside. ";