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2022 DIGILAW 902 (RAJ)

Jamana Lal v. Banshi Lal

2022-03-15

RAMESHWAR VYAS

body2022
JUDGMENT 1. The matter comes upon an application (1/2020) under Section 151 Code of Civil Procedure filed by the plaintiffrespondents seeking dismissal of the present appeal filed against him by the defendant for non-payment of requisite court fees. 2. As per contention of the learned counsel for the plaintiff-respondents, vide judgment and decree dated 1.6.2019 learned trial below has passed the preliminary decree of partition in favour of the plaintiffs. Defendan-Appellants have challenged the said judgment and decree by way of filing the present appeal. The said appeal could have been admitted only after depositing of requisite court fees, whereas, the appellant has paid only Rs.235/-. In the impugned judgment and decree, plaintiffrespondents were directed to pay court fee of Rs.39,375/- under the provisions of Section 35(1) of the Rajasthan Court Fees And Suits Valuation Act, 1961 (herein afterwards referred to as ’the Act of 1961’). However, appellant-defendant has filed the appeal on insufficient court fees. 3. Heard the learned counsel for the parties and perused the material available on record. 4. Since, the defendant-appellants in this appeal have challenged the judgment and decree dated 1.6.2019 passed in favour of the plaintiff-respondents, as per the provisions of Section 15 of the Act of 1961, the provisions relating to determination and levy of court fee on plaint in suits shall apply mutatis mutandis to the determination and levy of court fee in respect of a memorandum of appeal. Since, in the present case, plaintiff was required to pay court fees in accordance with the provisions of Section 35(1) of the Act of 1961 on the market value of the plaintiff’s share in the property, hence, defendant -appellants cannot be permitted to file this appeal only on Rs.235/-. The same principle will apply while determining the valuation and levy of the court fee on the subject matter, as was applicable while determining the court fee on the plaint filed by the plaintiff - respondents. 5. In view of above, the defendant-appellants are directed to pay requisite court fee within a period of two weeks. 6. The application (No.1/2020) stands disposed of.