MODI, J. - (1.) THIS is a defendant's second appeal and raises a short question relating to court-fees.
(2.) THE plaintiff respondent brought the suit for arrears of rent and ejectment against the defendant in the court of the Munsiff, Nathdwara, which was decreed against him in respect of both reliefs. THE defendant then went up in appeal to the Civil Judge, Udaipur. In his memorandum of appeal, he questioned the decree of the trial court on both the counts, but somehow paid court-fees on the memorandum of appeal in so far as it related to the decree for arrears of rent only, and no court-fee was paid on the relief in so far as it related to the setting aside of the decree for ejectment. Consequently an application was made to the learned Judge in appeal for permission to put in the court-fees for the latter relief also. This prayer was refused. THE learned Judge then proceeded to hold that inasmuch as the defendant had prayed for relief both as to arrears of rent and for ejectment and had paid court-fees only on the arrears of rent decreed against him, the memorandum of appeal was insufficiently stamped, and, in this view of the matter, dismissed the appeal with costs. THE defendant has now come up in second appeal to this Court. The narrow question for decision is whether the learned Civil Judge was correct in throwing out the defendant's entire appeal before him as barred by time on the ground that it was insufficiently stamped. This question must be answered in favour of the defendant appellant. An identical question arose in the Lahore High Court in Shah Mohammad Vs. Shah Mohammad (1 ). There, as in the present case, the appeal was found to be insufficiently stamped on the reliefs claimed therein, and the first court of appeal refused indulgence under Sec. 149 of the Code of Civil Procedure and then proceeded to dismiss it on the ground that it was time barred. It was held by the High Court that the appellant was entitled to have his appeal heard with regard to his claim for which court-fee had been paid and with respect to which it was within time. It was further held that the fact that the first court of appeal was not requested to hear the appeal to the extent of the relief for which it was properly stamped, which was also within time, did not make any difference to the correct legal position in this regard. I respectfully agree with this view and hold that the learned Civil Judge was wrong in refusing to hear the appeal altogether and throwing it out even to the extent it was properly stamped and was within time, and that the failure of the defendant to have paid the full court-fee on the memorandum of appeal as framed could have properly the effect of disentitling him to the relief on which no court-fee had been paid. The result is that I allow this appeal and send the ease back to the learned Civil Judge under O. 41 R. 23 C. P. C. with a direction that he will decide the appeal on the merits in accordance with the view which I have held above. Let a certificate of refund be granted to the defendant appellant for refund of the court-fees paid by him on his memor-anbum of appeal in this Court. As to costs, I think that the proper order to make in all the circumstances of the case is to leave the parties to bear their own costs in this Court and the court below but further costs will abide the event. Order accordingly. .;