ORDER Present petition has been filed by the petitioners for quashing the order dated 21.02.2012 passed by the respondent No.1 in Civil Appeal No.65 of 2011 Sardar Gurpreet Singh and another v. Sardar Tejender Singh and another. 2. Brief facts of the case, as narrated in the petition, are that plaintiffs/respondent Nos.2 & 3 instituted Original Suit No.580 of 2001 Sardar Tajender Singh Gambhir and another v. Sardar Gurpreet Singh and another against the petitioners, seeking relief of prohibitory injunction, which was subsequently converted as a suit for declaration and possession inter alia on the grounds that the plaintiffs are the owner-in-possession on the basis of Will dated 25.07.1996 executed by their predecessor and on the basis of family settlement reduced in form of MOU dated 29.05.1999. Regarding the same property, another suit No.710 of 2001 Sardar Tajender Singh Gambhir and another v. Sardar Gurpreet Singh and another was also filed, seeking relief of injunction and possession. Both the suits were clubbed together. During the pendency of the Original Suit No.580 of 2001, an amendment seeking relief of declaration and possession was sought, which was allowed and consequently, incorporated/carried out in the plaint and a consequential amendment in the valuation of court fee paragraph was also sought, allowed and carried out. According to the enhanced amended valuation, plaintiffs were supposed to pay additional court fee of Rs. 7,520/-, as per the amended valuation. Despite without making deficiency good, the Court below proceeded with the suit and decreed the suit in favour of the plaintiffs. Aggrieved by the judgment and decree dated 11.06.2011, a regular Civil Appeal No. 65 of 2011 Sardar Gurpreet Singh and another v. Sardar Tajender and another under Section 96 of C.P.C. was filed in the Court of District Judge, Dehradun, challenging the different findings, apart from challenging the non-payment of the additional court fee, and consequently, challenging the decree passed by the trial Court specifically in paragraph No.10 of the memo of appeal. The said appeal was subsequently transferred to the Court of respondent No.1. After receiving the notices of the appeal and after appearing before the Appellate Court, the plaintiffs/respondent Nos.2 & 3 filed an application on 12.10.2011, seeking permission of the respondent No.1 to deposit the court fees of ` 7,520/-, which was otherwise required to be paid before the trial Court. The petitioners filed objections against the said application. After receiving the notices of the appeal and after appearing before the Appellate Court, the plaintiffs/respondent Nos.2 & 3 filed an application on 12.10.2011, seeking permission of the respondent No.1 to deposit the court fees of ` 7,520/-, which was otherwise required to be paid before the trial Court. The petitioners filed objections against the said application. Vide order dated 21.02.2012, the respondent No.1 permitted the plaintiffs/respondent Nos.2 & 3 to make good the deficiency of court fee. Against the order dated 21.02.2012 passed by the respondent No.1 in Civil Appeal No.65 of 2011 Sardar Gurpreet Singh and another v. Sardar Tejender Singh and another, present petition has been filed by the petitioners. 3. Shri Siddhartha Singh, learned counsel for the petitioners submitted that it is a trite law that until and unless the proper court fee is paid and/or deficiency of court fee is made good, the case cannot proceed further and in absence to make the deficiency good, the plaint is liable to be rejected and dismissed for non compliance. He submitted that in the present controversy, without making deficiency good, the plaintiffs and the Court below proceeded with the suit that culminated in the decree in favour of plaintiffs, which by all legal fictions is non est and nullity. He submitted that the respondent No.1 failed to appreciate that the Court-fees Act is undisputedly a taxing/fiscal statute, which requires to be interpreted strictly. He further submitted that while passing the order impugned, the respondent No.1 failed to consider Section 6 (2) and proviso of Section 6 (3) of the Court-fees Act. He submitted that whenever a question of proper amount of court fee payable is raised otherwise than under sub-section (3), the Court shall decide such question before proceeding with any other issue. He submitted that in the case in hand, neither the deficient court fee was paid/ deposited/made good nor any security was furnished, and the respondent No.1 ignored those factual and legal aspects, which resulted in passing of the order impugned. He also submitted that sub-section (3) of section 6 of the Court-fees Act provides that the judgment should not be delivered in absence of payment of proper court fee and further says of dismissal of suit in absence of making deficiency good. He also submitted that sub-section (3) of section 6 of the Court-fees Act provides that the judgment should not be delivered in absence of payment of proper court fee and further says of dismissal of suit in absence of making deficiency good. He argued that after receiving the notices of the appeal and after appearing before the Appellate Court, plaintiff/respondent Nos.2 & 3 kept mum and all of a sudden woke up and filed an application on 12.10.2011, seeking permission of the respondent No.1 to deposit the court fee of ` 7,520/-, which was otherwise required to be paid before the trial Court. The petitioners filed the detailed objections on the ground that the deficiency of court fee can be made good in the trial Court and in no manner can be made good during the appellate stage, since it requires an amendment in decree and in absence of payment of court fee, the judgment and decree passed by the original Court stands vitiated, non est. He contended that the respondent No.1 failed to appreciate that provisions of Section 148, Section 149 and Section 151 of C.P.C. applies in the trial Court, which are enabling sections/provisions. He submitted that in any case, if no time period is prescribed by the trial Court for making deficiency good, then it is the period of 14 days, as per General Rule (Civil). He also submitted that the respondent No.1 failed to appreciate that the provision of Section 149 of C.P.C. can be invoked only in exceptional contingencies, not as a matter of routine. If plaintiffs are permitted to file/pursue the case in absence of payment of proper/required court fee (except in case of proper, where provision of Order 33, C.P.C. applies), then all litigants would persue their case without paying required court fee. In case plaintiffs lose the case and do not prefer appeal, they would be at liberty to evade payment leading to revenue loss to State. In case plaintiffs lose the case and do not prefer appeal, they would be at liberty to evade payment leading to revenue loss to State. He further argued that the respondent No.1 failed to exercise the jurisdiction vested in him by law ignoring his duty and obligation, since the trial Court is competent suo motu to reject the plaint, as per the requirement of Order 7, Rule 11 (b), (c) of C.P.C. He submitted that due to non-compliance of order of the trial Court to make the deficiency of court fee good, a right had occurred to the defendants, since the subsequent proceedings, after amendment, became non est, null and void, but by passing the order impugned, respondent No.1 had turned upside down, which is vitiated in the eyes of law. He further submitted that respondent No.1 has exercised his jurisdiction with material irregularity, which has led to the passing of order impugned, since the plaintiffs cannot be permitted to obtain the relief from the Court and then, subsequently pay the court fee. In contra, if plaintiffs fail, then they would be avoiding the payment of court fee, which in turn leads to the loss to the exchequer. He submitted that proceedings of the trial Court, after the aforesaid amendment, due to non-payment of additional court fees, stood vitiated. He contended that it was the duty of the plaintiffs, after amending their plaint, valuation clause and relief clause, to pay the additional court fee in spite there being any objection to that effect from the Court and/or officer of the Court and/or the defendants. He argued that legally in absence of payment of required court fee, may be due to over site or mala fidely/ulterior motive, the subsequent proceeding, after the said amendment, were not permissible and a nullity. He submitted that the defendants cannot be blamed for not filing an application under Order 7, Rule 11, C.P.C. in absence of payment of additional court fee, more particularly, when the provision of Order 7, Rule 11, C.P.C. can be invoked by the Court suo motu. He contended that in the present context, deficiency of court fee was not made good even at the time of passing of decree by the trial Court and even immediately thereafter. He contended that in the present context, deficiency of court fee was not made good even at the time of passing of decree by the trial Court and even immediately thereafter. It would have been a bonafide on the part of respondent Nos.2 & 3 had they deposited the deficient court fee immediately after coming to know of it in the decree, but it is not so in the case in hand. Learned counsel for the petitioners lastly submitted that the impugned order passed by the respondent No.1 would be bad precedent, if allowed to stand and would lead to filling of suits, continuation of suit without payment of court fees at the right time. 4. On the other hand, the learned counsel for the respondent Nos.2 & 3 submitted that the order dated 21.02.2012 is perfectly legal and justified. The mandate and requirement of Court-fees Act have been strictly complied with. He submitted that omissions to deposit court fees took place due to oversight. It is not a case, where the court fee has not been paid mala fidely or with some oblique motive. The fact that the court fee has not been paid remained unnoticed and no sooner the same got attention of parties, application for payment of court fee was filed and the same has been rightly accepted. He submitted that the court fee could not be paid due to oversight and the plaintiffs were always ready and willing to pay court fee. It is also submitted by the learned counsel for the respondent Nos. 2 & 3 that the defendants also failed to point out or failed to file an application under Order 7, Rule 11, C.P.C., while the suit was pending, therefore they cannot lament that suit was not dismissed under Order 7, Rule 11, C.P.C. The procedure is handmade for justice. It is further stated that the plaintiffs were ready to pay deficient court fee and therefore, filed an application for payment of court fee before the Appellate Court. The defendants, on the other hand, failed to rake up the issue at the relevant time and is now, agitating a stale matter only for the purpose of vexation. It is further stated that the plaintiffs were ready to pay deficient court fee and therefore, filed an application for payment of court fee before the Appellate Court. The defendants, on the other hand, failed to rake up the issue at the relevant time and is now, agitating a stale matter only for the purpose of vexation. In a matter, where the issue of payment of court fee is not being contested, coupled with facts that the plaintiff has filed the application and has submitted the deficient court fee at appellate stage, the analogy of not permitting the suit to proceed, cannot be drawn. It is further stated by him that even if arguments of the petitioners are accepted, the suit can be remanded to Court below for decision afresh. The issue on court fee does not directly affect merits of the case, which is based upon the pleadings and appreciation of evidence led by the parties. Remand of suit only for the purpose of court fee will not promote the cause of justice. Learned counsel for respondent Nos. 2 & 3 further submitted that it will not be out of place to point out that even when matter of deficient court fee is decided, whether in an independent issue or on an application under Order 7, Rule 11, C.P.C., the party, who has been found to have paid deficient court fee, is entitled to have an opportunity to make the deficiency good. This simply means that a suit cannot be thrown out without giving an opportunity to defaulting party to make the deficiency good, which will necessarily lead to a conclusion that the deficient court fee will not make decree bad in the eyes of law. He also submitted that the Court-fees Act is not a taxing statute and there are provisions in the C.P.C. itself, which permit payment of court fee at the time of decree. He submitted that the provisions of Sections 6(2) and 6 (3) proviso of the Court-fees Act are not at all relevant for deciding the present controversy. He submitted that the appeal was presented on 07.07.2011. The application for payment of court fee was filed on 12.10.2011 i.e. soon after the service in the appeal. No motive or mala fide can be attributed to the plaintiff/ respondent Nos.2 & 3. He submitted that the appeal was presented on 07.07.2011. The application for payment of court fee was filed on 12.10.2011 i.e. soon after the service in the appeal. No motive or mala fide can be attributed to the plaintiff/ respondent Nos.2 & 3. The omission to pay court fees took place due to oversight and not by way of a calculated design to harass the defendants or to gobble up the court fee. 5. I have heard the learned counsel for the parties and have perused the papers available on record. 6. In the present case required court fee was paid at the time of institution of suit. During the pendency of suit, amendment in reliefs as well as amendment in the valuation of court fee paragraph was sought. Same was allowed and amendment was incorporated. But additional Court fee was not paid. Order VII, Rule 11 of C.P.C. provides that plaint shall be rejected in a case where the relief claimed is under valued, 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. After amendment neither any order was passed by the Court requiring the plaintiffs to make good the Court fee nor defendants filed any application under Order VII, Rule 11 of C.P.C. for rejection of plaint. Consequently, no order was passed for rejection of plaint. The fact that sufficient court fee has not been paid remained unnoticed by the parties as well as by the Court. Suit was decreed without payment of sufficient court fee. Section 149 of C.P.C. empowers the Court to allow the plaintiff to pay the whole or part of the Court fee. Section 149 of C.P.C. is given hereinafter: 149. Power to make up deficiency of court fees.- 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, as the case may be, of such court fee; and 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. In view of above provision of C.P.C., the Court can grant permission to the plaintiff to pay whole or part Court fee at any stage. In the present case, such permission was never given. Sub-section (2) of Section 6 of the Court- fees Act, 1870 provides that suit cannot be proceed further unless plaintiff makes good the deficiency in Court fee. Same is quoted below: (2) Notwithstanding the provisions of sub-section (1), a Court may receive plaint or memorandum of appeal in respect of which an insufficient fee has been paid, 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 such time as may from time to time be fixed by the Court. Similarly, proviso of sub-section (3) of section 6 provides that Court may grant time to the plaintiff to make good the deficiency in the Court fee. Proviso of this sub-section provides that Court can proceed further only without payment of sufficient Court fee after it records sufficient reasons for the same. This proviso further provides that in no case judgment shall be delivered unless the deficiency in Court fee has been made good. Sub-section (3) of section 6 of the Court-fees Act with proviso is reproduced below: (3) If a question of deficiency in Court fee in respect of any plaint or memorandum of appeal is raised by an officer mentioned in Section 24-A the Court shall, before proceeding further with the suit or appeal, record a finding whether the Court fee paid is sufficient or not. If the Court finds that the Court fee paid is insufficient, it shall call upon the plaintiff or the appellant, as the case may be, to make good the deficiency within such times as it may fix, and in case of default shall reject the plaint or memorandum of appeal: Provided that the Court may, for sufficient reasons to be recorded, proceed with the suit or appeal if the plaintiff or the appellant, as the case may be, given security, to the satisfaction of the Court, for payment of the deficiency in Court-fee within such further times as the Court may allow. In no case, however, shall judgment be delivered unless the deficiency in Court fee has been made good, and if the deficiency is not made good within such time as the Court may from time to time allow, the Court may dismiss the suit or appeal. 7. In the case in hand, after amendment in the valuation clause of the plaint, it was duty of the plaintiffs to make good the deficiency in the court fee. Deficiency of the court fee could be made good in the trial Court only. Perusal of sub-section (2) of Section 6 of the Court-fees Act transpires that no plaint shall be acted upon, unless deficiencies in the court fee are made good. Court-fees Act further provides that in no case, the judgment shall be delivered unless the deficiency in Court fees has been made good. Section 149 of C.P.C. though gives power to the Court to allow the plaintiff to pay the deficit court fee but such power is given to the Court before the disposal of suit. Thus, permission for payment of additional Court fee or for making good the deficiency in Court fee could only be granted during the pendency of suit. In absence of payment of sufficient court fee the judgment could not be delivered. Deficiency of Court fee in respect of plaint cannot be made good during the appellate stage. Such permission could not be granted by the appellate Court under Section 151, C.P.C. In case such permission is permitted to the parties, then it would not only be per se illegal but would also be a bad precedent since all litigants would adopt this method of paying court fee only after obtaining relief from the trial Court, before the Appellate Court. I have no hesitation to say that decision making process of Addl. District Judge/FTC II, Dehradun is per se vitiated and cannot be appreciated. He has exercised his jurisdiction with material irregularity and order passed by him deserves to be set aside. 8. In view of above discussion, the petition is allowed. Order dated 21.02.2012 passed by the respondent No.1 in Civil Appeal No.65 of 2011 is quashed. 9. No order as to costs. Petition allowed.