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2011 DIGILAW 416 (UTT)

SATYA DEVI v. JANAK

2011-07-08

B.S.VERMA

body2011
JUDGMENT Heard learned counsel for the parties. 2. By means of this revision, the revisionists have preferred revision against order dated 21.10.2010, whereby issue No. 9 regarding valuation has been decided and revisionists were directed to pay the ad valorem court fee on the entire valuation of the suit. 3. Briefly stated the facts giving rise to this revision are that a civil suit no. 324 of 2002, Smt. Satya Devi and others Vs. Smt. Janak and others, was instituted by the revisionists for cancellation of lease deed, which was valued at Rs. 25,000/-. The trial court after obtaining report from Amin Commissioner, assessed the valuation at Rs. 25,11,215/-. Accordingly issue No. 2 was decided by the trial court vide order dated 16.03.2005. Said finding was assailed before this Court by revisionists/plaintiff, by filing writ petition No. 722 of 2006 (M/S), which was disposed of by this Court vide order dated 29.08.2007. By said order, this Court opined that since the order passed by the trial court is appellable under Section 6A of Court Fees Act, 1870, as such, the writ petition is not maintainable. It appears that one of the revisionist – Smt. Snehlata, preferred appeal before appellate court in the year 2009 along with delay condonation application. By the order dated 22.08.2009, appellate court found that the delay in moving before the wrong forum under Section 14 of the Limitation Act, was condonable, but the appellate court did not find sufficient explanation for not filing appeal since 29.08.2007 till 09.01.2009, as such, delay condonation application was rejected. Thereafter, the writ petition No. 1728 of 2009, was find before this Court to assail the order of appellate court dated 22.08.2009, passed in civil misc. appeal No. 08 of 2009, which was decided by this Court on 13.10.2009. Smt. Snehlata Devi Vs. Smt. Janak and others. Thereafter, the writ petition No. 1728 of 2009, was find before this Court to assail the order of appellate court dated 22.08.2009, passed in civil misc. appeal No. 08 of 2009, which was decided by this Court on 13.10.2009. Smt. Snehlata Devi Vs. Smt. Janak and others. After hearing both the parties, this Court affirmed the order of the appellate court and observed in its order that as far as liability to pay court fees at 1/5 of the valuation of the subject matter is concerned, as provided under Clause (2) of sub-clause (iv-A) of Section 7 of the Court Fees Act, 1870, the plaintiffs are at liberty to make the payment in accordance with law as the order passed by the trial court simply relates to the valuation of the property and it doesn’t say that the plaintiffs have to pay full court fee on the entire valuation of the subject matter. It further observed that the plaintiff has pleaded that she was not a party to the instrument (lease deed), which was sought to be cancelled. 4. Consequently, thereafter, the plaintiff/revisionists have moved an application before the trial court to amend the valuation clause and one another application 82 C2 to pay the court fee was also filed. Said amendment application was allowed and liberty was given to the defendants to file additional written statement and the same was also filed. As per amended clause, the plaintiff was permitted to pay court fees on 1/5th amount saying that they were not party to the lease agreement is not correct and according to the defendants predecessor of the revisionists were party to the lease. The trial court framed issue no. 9 as under :- Whether the court fees paid is insufficient and issue no. 9 was decided against the revisionists? 5. Issue no. 9 was decided against the revisionists. Preliminary objection has been raised by the respondent-Snehlata, that an alternative statutory remedy is available to file appeal under Section 6A of the Court Fees Act and this Court had also passed the order in writ petition No. 722 of 2006 on 29.08.2007. 9 was decided against the revisionists? 5. Issue no. 9 was decided against the revisionists. Preliminary objection has been raised by the respondent-Snehlata, that an alternative statutory remedy is available to file appeal under Section 6A of the Court Fees Act and this Court had also passed the order in writ petition No. 722 of 2006 on 29.08.2007. Para 3 and para-5 of said order are being reproduced as under :- “(3) Section 6A of Court Fees’ Act, 1870 (as amended for Uttar Pradesh) reads as under :- 6-A. Appeal against order to pay court-fee (1) Any person called upon to make good a deficiency in court-fee may appeal against such order as if it were an order appellable under Section 104 of Code of Civil Procedure. The party appealing shall file with the memorandum of appeal, a certified copy of the plaint together with that the order appealed against. (2) In case an appeal is filed under sub-section (1), and the plaintiff does not make good the deficiency, all proceedings in the suit shall be stayed, and all interim orders made including an order granting an injunction or appointing a Receiver, shall be discharged. (3) A copy of the memorandum of appeal together with a copy of the plaint and of the order appealed against shall be sent forthwith by the appellate Court to the Chief Inspector of Stamps. (4) If such order is varied or reversed in appeal, the appellate court shall, if the deficiency has been made good before appeal is decided, grant to the appellant a certificate, authorizing him to recover back from the Collector such amount as is determined by the appellate court to have been paid in excess of the proper court-fee. (5) The Court may make such order for the payment of cost of such appeal as it deems fit, and where such costs are payable to the Government, they shall be recoverable as arrears of land revenue. (6) Without going into the merits of the case whether the finding is correct or not, this Court is of the opinion that in view of Section 6A of Court Fees Act, 1870, since the remedy of appeal is provided, as such neither revision nor writ petition is maintainable against such order.” 6. (6) Without going into the merits of the case whether the finding is correct or not, this Court is of the opinion that in view of Section 6A of Court Fees Act, 1870, since the remedy of appeal is provided, as such neither revision nor writ petition is maintainable against such order.” 6. Learned counsel for revisionists has contended that the trial court has committed manifest error of law in not examining the lease agreement and deciding the issue against the revisionists/plaintiff and again directed to pay the court fees while the earlier application 82 C2 was allowed vide order dated 25.11.2009, after hearing learned counsel for both the parties. Therefore, revisionists may raise all the grounds raised in this revision before appellate court, which is available to them under law. 7. In view of the facts as discussed above, that as per provision of Section 6A(1) of Court Fees Act, 1870, any person called upon to make good a deficiency in court-fee may appeal against such order as if it were an order appellable under Section 104 of the Code of Civil Procedure, since the statutory alternative remedy is available to the revisionists to file an appeal, therefore, I am not inclined to entertain the revision. The revision is dismissed summarily. No order as to costs.