- (1.) THIS is a second appeal by the plaintiffs Tilokchand and another in a suit for ejectment and arrears of rent.
(2.) THE plaintiffs' case was that the defendant Lalchand had taken the suit house on rent from the former under a rent-note dated Fagun Sudi 1 Smt. 2004 by which the latter agreed to pay rent at the rate Rs. 13/- per mensem. THEir case further was that the defendant had been in arrear, so far as the payment of rent was concerned, to the extent of a sum of Rs. 178/- upto the date of suit and that they wanted to effect necessary repairs to the house, and, therefore, they filed the present suit for recovery of the arrears of rent as well as for the ejectment of the defendant. The defendant resisted the suit on certain pleas which are not material at this stage at all, and, therefore, these need not be mentioned. The trial court held, that the defendant had defaulted in payment of rent as alleged by the plaintiffs and accordingly gave a decree in favour of the latter for arrears of the rent amounting to Rs. 178/- as well as for possession. The defendant went in appeal to the learned District Judge who also concurred in the finding of the trial court that rent amounting to Rs. 178/- was payable as arrears upto the date of the suit. The learned District Judge, however dismissed the plaintiffs' suit for possession on the ground that the plaintiffs had failed to pay court-fee in the trial court on their relief for possession of the house by way of ejectment. The plaintiffs have now come up in appeal to this Court, and their main contention is that the view taken by the lower appellate court is wrong and must be set aside. On having heard learned counsel for the parties. I have arrived at the conclusion that this appeal has force. It may be pointed out at once that the plaintiffs somehow valued their suit for purposes of court-fees merely at Rs. 178/- and also put the same valuation for purposes of jurisdiction on it, this sum of Rs. 178/- being, according to them, the amount of arrears of rent due to them from the defendant. The relief for possession was not separately valued at all nor was any court-fee paid on it. According to clause (xi) of sec. 7 of the Court-Fees Act (No. VII) of 1870 a suit by a landlord against a tenant for the recovery of immovable property from the latter should have been valued for purposes of court-fees according to the amount of the rent of the immovable property payable for the year next before the date of the presentation of the plaint. In other words, as the rent payable in the present case was Rs. 18/- per month the court-fee should have been paid on Rs. 216/- so far as the relief for recovery of possession was concerned. This was, however, not done and the suit, as already stated, was valued both for purposes of court-fees as well as jurisdiction at Rs. 178/- only. As it happened, this mistake was not detected by the trial court also and that court decreed the plaintiffs suit not only for recovery of arrears of rent but also for ejectment. When the objection as to non-payment of the proper court-fee on the relief of possession was taken by the defendant before the district Judge, it was submitted on behalf of the plaintiffs (who were respondents there) that the court-fee had not been paid by inadvertence, and, therefore they should be allowed to pay it even at that stage. The learned District Judge, however, rejected that application on the ground "that the suit in question remained pending for a considerable time in the court below since 18th August, 1950, and thereafter the appeal had also remained pending in this court for about one year. But the plaintiff never moved the trial court for payment of the court-fees. So they cannot be allowed now to pay the court-fees on this relief. " Reliance was placed in this connection on Valliappa Chetty vs. Rungaswamy Naickar (1) wherein it appears to have been laid down that on appellate court cannot make an order for payment of an additional court-fee when no fee at all has been paid and where the original court has not decided the question of valuation. On a careful consideration of the entire matter, I am of opinion that the learned District Judge clearly misdirected himself when he refused to permit the plaintiffs to make up the deficiency in the court-fee in the circumstance' of the case. The attention of the learned Judge does not seem to have been directed to the provisions of sec. 149 or O. VII r. 11 of the Code of Civil Procedure. Sec. 149 clearly provided that where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-fees has not been paid, the court may in its discretion, at any stage allow the person by whom such fee is payable to pay the whole or part thereof. It further provides that upon such payment the document in respect of which such fee is payable shall have the same force and effect as if such fee had been paid in the first instance. This section clearly authorises the court to allow a deficiency in the matter of court-fees to be made up at any stage of the case. The matter as I look at is clinched by the provisions of O. VII r. 11 C. P. C. The relevant clauses are (b) and (c), and these as are follows : - (b) The plaint shall be rejected where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court fails to do so; (c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so. It clearly follows from the provisions of rule 11 cited above that before a plaint can be rejected on the ground of the relief having been undervalued, or on the ground that though the relief was properly valued the plaint was insufficiently stamped, the court must give an opportunity to the plaintiff to either correct the valuation or make up the deficiency in the matter of court-fees before the plaint could be rejected. It is conceded before me on behalf of the defendant, and it is indeed indisputable, that the question of deficiency in the matter of court-fees was not at all raised by the defendant in the trial court and it was in the court of first appeal that it was being raised for the first time. I may also point out in this connection that the value for purposes of jurisdiction of a suit by a landlord against a tenant under sec. 7 (xi) (cc) of the Court-Fees Act read with sec. 8 of the Suits Valuation Act is the amount of rent payable for the year next before the suit. In other words, the value for purposes of court-fees will as for purposes of jurisdiction must be the same. Having regard to all the circumstances of the case to which I have made reference above and particularly to the circumstance that the trial court itself had fallen into error in not detecting the mistake as to the deficiency in the matter of court fees, I am definitely disposed to hold the view that learned District Judge would have exercised his discretion in a judicial manner if he had permitted the plaintiffs to make up the deficiency of court-fees within a certain time to be fixed by him, and in failing to do so; the learned Judge, to my mind, clearly fell into error. I have no doubt that he had the power to do so under sec. 28 of the Court-Fees Act also which provides that where a document which ought to bear a proper stamp and has not been so stamped is filed or used in any court or office without being properly stamped through mistake or inadvertence, the presiding Judge may order that such document be stamped as he may direct and on such document being stamped accordingly it would be valid as if it had been properly stamped in the very first instance. Besides it has been held in Wajid Ali vs. Isar Bano (2) that while O. VII r. 11 C. P. C. gives the trial court power to allow a deficiency in the matter of court-fees to be made up with respect to a plaint which is deficiently stamped, the appellate court has the same powers by virtue of sec. 107 C. P. C. and where it finds that the plaint is insufficiently stamped, then it should follow the same procedure as the trial court should have done. I may also point out that so far as the decision in Valliappa Chetty's case (l) is concerned, the facts of that case appear to me to be entirely different from those of the case before me, and, in any case, it does not appear that the attention of the learned Judge who decided that case was drawn to the provisions of sec. 149 C. P. C. In any view of the matter, the present case falls expressly to be governed by the provisions of O. VII r. 11 C. P. C. and as the trial court could not have rejected the plaint without giving reasonable opportunity to the plaintiffs to make up the deficiency in the matter of court-fees, I have no hesitation in coming to the conclusion that the lower appellate court was not right in dismissing the plaintiff's claim for the relief of possession without affording him similar opportunity to make up the deficiency in the payment of court-fees. I, therefore, set aside the decree of the learned District Judge dismissing the plaintiffs' prayer for possession and direct that the plaintiff shall pay additional court-fees on the sum of Rs. 216/i- being the amount of one year's rent before the presentation of the plaint in this case within one month from today. If he fails to make up the deficiency within the time allowed by me, this appeal shall stand dismissed. If the court-fees is paid within the time allowed, the case will be listed for further hearing on the merits. . ;