BALIA, J. - (1.) THIS appeal is directed against the determination of the question of court fees, by the learned Single Judge that is payable in an appeal preferred by a claimant against the award of compensation by the District Court under Section 23 of the Land Acquisition Act, 1894 in a reference made under Section 18 of the Act of 1894.
(2.) THE appellant has preferred an appeal under Section 54 of the Act of 1894 against the determination of compensation by the learned District Judge to the extent he was aggrieved of it. THE appeal was presented on the court fee of Rs. 2/ -. THE appellant has also not mentioned the value and subject matter of the appeal. THE office raised an objection that the memo of appeal does not show the subject matter and value of the appeal and that the court fee payable on the memo of appeal against the award of compensation by the District Judge under Section 23 is ad valorem on the value of the subject matter of the appeal. In support of this objection, a reference was made to the decision of this Court in CMA (Defect) No. 1661/1994 decided on 7. 9. 1995 (1), deciding the like objections earlier and holding that the court fee of Rs. 2/- on the memo of appeal is not sufficient. In reply, thereof, learned counsel asserted that the memo of appeal was presented on the right court fee. When the matter came up for hearing before the learned Single Judge on 4. 3. 2003 in respect of the aforesaid office objection, learned counsel for the appellant volunteered to mention the valuation of the appeal and submitted that Section 46 of Rajasthan Court Fee and Suits Valuation Act, 1961 (hereinafter referred to as `the Act of 1961') would not govern the question of requirement of payment of Court fees because while it provides for valuation of appeal against an award of compensation under any law relating to land acquisition, it does not prescribe as to at what rate the Court Fee would be payable. By virtue of Section 47 read with Entry-III of Schedule-II, the Court fees is to be paid either as paid in the Court below or as a fixed court fees thereunder. Learned counsel also relied on a decision of Hon'ble Supreme Court in Diwan Brothers vs. Central Bank of India, Bombay & Ors. However, the learned Single Judge did not sustain this contention pointing out that the Hon'ble Supreme Court in Diwan Bros' case was considering the question of court fee in an entirely different situation and was not considering the question of payment of court fees on an appeal arising out of an order passed for compensation for the acquisition of immovable property for public purposes where the legal provision required to be considered in that case was not analogous or pari-materia with the provisions of Section 46 of the Rajasthan Court Fees and Suits Valuation Act. Relying on the decision referred to in the office objection and an earlier decision of this Court in Achal Singh and Anr vs. State of Rajasthan and Ors. (3) and in Rajasthan State Industrial Development and Investment Corporation vs. State (4), the learned Single Judge held that the appellant is liable to pay the Court fees as contemplated by Section 46 ad valorem on the value of subject matter of appeal. With these findings, 12 weeks time was allowed to do the needful, failing which, the appeal was ordered to be dismissed without reference to the Court. The special appeal was admitted on 24. 4. 2003 and by way of an interim order it was ordered the the peremptory order passed by the learned Single Judge shall remain stayed and the appeal shall be listed for admission only after decision of this special appeal.
(3.) IT further transpires from the record that during all these proceedings, the special appeal was dismissed for want of prosecution on 26. 4. 2004. IT also transpires that the special appeal was ordered to be restored on 29. 7. 2004 by allowing the restoration application filed by the learned counsel on behalf of the appellant. However, prior to restoration of this special appeal, due to dismissal of appeal as aforesaid treating the peremptory order dated 4. 3. 2003 passed by learned Single Judge to be in operation, the Deputy Registrar (Judicial) recorded dismissal of the misc. appeal in terms of the aforesaid peremptory order on 3. 6. 2004. The appellant has moved a Restoration Application No. 47/2004 for restoring the said Misc. Appeal No. 864/2000 (DRJ) which has also been annexed with the record of this special appeal. Since the present special appeal was dismissed in default on 26. 4. 2004 and was restored t its original number on 29. 7. 2004, such restoration had the result of continuance of appeal from the stage where it was dismissed for want of prosecution with the existing proceedings as on that date. In that view of the matter, in our opinion, the effect of peremptory order did not survive on restoration of special appeal and the appeal before the learned Single Judge came alive to be considered. Lest there be any doubt about it, in the interest of justice, we direct that the S. B. Civil Misc. Appeal No. 864/2000 (DRJ) shall stand restored to its original number and to be treated as pending in view of the fact that the special appeal was admitted on 24. 4. 2003 and the operation of peremptory order was stayed and as a consequence of restoration, for making an effective order and not to allow failure of justice for this technical reason, the application for restoration of S. B. Civil Misc. Appeal No. 864/2000 (DRJ) stands allowed and the said appeal stands restored. ;