Research › Search › Judgment

Uttarakhand High Court · body

2023 DIGILAW 383 (UTT)

Collector Dehradun v. Harish Joshi

2023-06-30

SHARAD KUMAR SHARMA

body2023
JUDGMENT : Sharad Kumar Sharma, J. These two First Appeals, being First Appeal No. 107 of 2018, Collector, Dehradun and another Vs. Harish Joshi and others, and First Appeal No. 106 of 2018, Collector, Dehradun and another Vs. Shri Bhaskara Nand Joshi and others, have been preferred under Section 54 of the Land Acquisition Act, as against the impugned awards, which were under challenge. 2. Despite of several opportunities being granted, when the Court fee was not remitted, the matter was taken up in the light of the provisions contained under Order 7 Rule 11 (c) of the CPC, and the same was decided by this Court by the judgment of 29th August, 2019, holding thereof, that since the requisite court fee has not been remitted, the plaint deserves to be rejected, in view of the provisions contained under Order 7 Rule 11 (c). 3. The aforesaid judgment of 29th August, 2019, as rendered in each of the First Appeal is sought to be reviewed by preferring a Review Application on 15th October, 2022, along with the Delay Condonation Application, seeking condonation of 305 days of delay in each of the Review Application. 4. The Delay Cononation Application is being vehemently opposed by the respondents Counsel by filing an objection to it. Apart from the fact, that the Registry has reported that the review application thus preferred by the appellant would be barred because, the requisite court fee as required for preferring a review application against the rejection of the First Appeal under Order 7 Rule 11 (c), has not been complied with. 5. The learned counsel for the appellant submits, that the aspect of delay has had to be reasonably considered by this Court for seeking review of the judgement when the Appeals have been dismissed for non-supplying of the requisite court fee in the light of the provisions contained under Order 7 Rule 11 (c). 6. Having considered the arguments raised by the learned counsel for the appellant, qua the delay condoantion application and the objection raised by the respondents to it, this Court is of the view, that prior to addressing the review application on its own merit, the delay which has chanced in filing the review application, would hereby stand condoned. 7. Accordingly, IA Nos. 16150 of 2022 and 16151 of 2022, filed in First Appeal No. 107 of 2018, and IA Nos. 7. Accordingly, IA Nos. 16150 of 2022 and 16151 of 2022, filed in First Appeal No. 107 of 2018, and IA Nos. 16149 of 2022 and 16150 of 2022, in First Appeal No. 106 of 2018, would stand disposed of. 8. Heard learned counsel for the parties on the Review Applications, being Review Application Nos. 16149 of 2022 and 16148 of 2022 respectively in each of the two First Appeals. 9. It has been argued by the learned counsel for the appellant under the strength of the judgment rendered by the Coordinate Bench of Kerala High Court, in R.P. No. 697 of 2009, Narikuniyil Narayanan Vs. Palol Ummer, where the Coordinate Bench of Kerala High Court in para 4 has observed, that a review application, which has been dismissed due to non supplying of the court fee while going to the provisions contained under Article 5 of Schedule 1 of the Court Fees Act, a review application would be treated as to be not a decree for the purposes of filing of a review application without remittance of the requisite court fee. 10. It was observed, that since the Appeal was rejected not on merits but only for default in payment of the court fee, the Court observes, that it cannot be deemed to be a decree going in by the definition of decree provided under Section 2 (2) of the CPC, because for the reason that no decision has been rendered on the merits of the Appeal, hence the same would not be treated as to be a decree. Relevant paragraph 4 is extracted hereunder :- “4. The question is whether the court fee paid on the review petition is sufficient. Going by Article 5 of Schedule I, on an application for review of judgment, one half of the fee payable on the plaint or memorandum of appeal comprising the relief sought in the application for review, has to be remitted. Learned counsel for the petitioner submitted that the appellant has remitted one third of the court fee in the memorandum of appeal. The appeal was rejected not on the merits but only for default in payment of balance court fee. Therefore, the appeal is only dismissed for default. It is therefore submitted that it cannot be deemed to be a decree going by the definition of 'decree' in Section 2 (2) of the Code of Civil Procedure. The appeal was rejected not on the merits but only for default in payment of balance court fee. Therefore, the appeal is only dismissed for default. It is therefore submitted that it cannot be deemed to be a decree going by the definition of 'decree' in Section 2 (2) of the Code of Civil Procedure. No decision has been rendered by this court on the merits of the appeal. It is therefore submitted that the objection taken by the Registry is not correct. Reliance is placed on the decision of a Division Bench of this court in Thanappan v. Hassan Kappor ( 2003 (2) KLT 39 ) and a Full Bench decision of the Madras High Court in In Re N. Kayambu Pillai (AIR 1941 Madras 836).” 11. While on the contrary, it has been argued by the learned counsel for the respondents, that if the provisions contained under Order 7 Rule 11 (c) are taken into consideration, it uses the word “rejection of a plaint due to non compliance of the conditions provided under Sub-clause (c) of Rule 11 of Order 7”. 12. The question would be as to whether a rejection of the plaint in those conditions would be a decree in itself or not. 13. The judgment of the Coordinate Bench of Madurai Bench of Madras High Court, has dealt with the question in Second Appeal (MD) No. 678 of 2014, A. Jawaharlal Vs. Thayammal, and particularly, the Madras High Court in para 15 of the said judgement has observed, that the rejection of a plaint in its very clear term as indicated under Order 7 Rule 11 (c), will be deemed to be a decree because, rejection of a plaint would amount to be a closure of a lis, and the provisions contained under Order 20 for formulation of a decree would come into play. 14. In fact, the provision does not contemplate an application being filed for the purposes of invocation of Order 7 Rule 11 (c), because it is an automatic implication, which would flow as a consequence of the law provided under Order 7 Rule 11 (c). 14. In fact, the provision does not contemplate an application being filed for the purposes of invocation of Order 7 Rule 11 (c), because it is an automatic implication, which would flow as a consequence of the law provided under Order 7 Rule 11 (c). The Court has observed, that ultimately when the plaint is rejected, and its ultimate result being the rejection of the plaint alone is appealable by deeming it to be a decree irrespective of the fact, an application for such purpose for seeking an exemption or extension of time to deposit the court fee was not filed. But, ultimately, in nutshell, the Coordinate Bench of Madras High Court has observed, that when the plaint is rejected, since it takes a shape of decree, it will be an appealable order, and as such, the Court fee is required to be remitted, and once it is a decree, in that eventuality, the Court fee which is required to be paid for the purposes of seeking a review would be 50% of the actual total court fee, which would have been otherwise payable under the principal proceedings. The relevant paragraph 15 of the said judgment is extracted hereunder:- “15. The provisions applicable to the powers of the Court other than the High Court, regarding rejection of plaint very clear indicate what is deemed to be a decree is the rejection of plaint and not the dismissal of an application seeking rejection of plaint. In fact, the provision does not contemplate an application being filed by any of the defendants seeking rejection of the plaint on any one of the grounds stipulated in Order 7 Rule 11 C.P.C. Though similar provisions are available in Rule 10 also relating to return of the plaint, we need not confuse the same with the scope of the order passed under Order 7 Rule 11 C.P.C. To be concise, a defendant, without even filing a petition under Order 7 Rule 11, can urge the Court to reject the plaint, pointing out the existence of anyone of the grounds mentioned in Order 7 Rule 11 C.P.C. That is the reason why, the ultimate result being the rejection of the plaint alone is made appealable by deeming it to be a decree irrespective of the fact an application for such purpose was filed or not. Dismissal of an application can be equated to the rejection of an argument advanced without filing such an application, that the plaint is liable to be rejected on any one of the grounds enumerated in Rule 11. It can never be treated or deemed to be a decree as per the definition of the decree found in Section 2(2) of Code of Civil Procedure, 1908. For the sake of convenience, Section 2(2) is extracted hereunder:- 2 (2). “Decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within [***] section 144, but shall not include- (a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dismissal for default. Explanation:-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;” 15. Almost a similar view was taken by the Hon’ble Apex Court in a judgement as reported in (2021) 7 SCC 456 , Sayyed Ayaz Ali Vs. Prakash G. Goyal and others, and while dealing with the said issue in para 19 of the said judgment, the Court has observed, that the definition of decree as provided under Section 2 Sub-section (2) of the CPC, shall be deemed to include a rejection of plaint. Hence, the order of the Trial Court rejecting the plaint since held to be a decree would be subject to an appeal under Section 96 of the CPC. Para 19 of the said judgment is extracted hereunder :- “19. The definition of “decree” in Section 2(2) “shall be deemed to include the rejection of a plaint”. Hence, the order of the Trial Court rejecting the plaint is subject to a first appeal under Section 96 of the CPC. The writ petition filed by the appellant was liable to be rejected on that ground. The definition of “decree” in Section 2(2) “shall be deemed to include the rejection of a plaint”. Hence, the order of the Trial Court rejecting the plaint is subject to a first appeal under Section 96 of the CPC. The writ petition filed by the appellant was liable to be rejected on that ground. We therefore affirm the judgment of the High Court rejecting the writ petition, though for the above reason leave it open to the appellant to pursue the remedy available in law.” 16. In that eventuality, the Hon’ble Apex Court by aforesaid observation has observed, that once a plaint is rejected under Order 7 Rule 11 (c), it takes a shape of a decree, and once it takes the shape of a decree, it would be appealable, and once it is appealable, then quite obviously, the logical inference for the purposes of preference of review would entail in itself for remittance of 50% of the court fee which would have been otherwise payable on the principal lis. 17. Apart from above reason, that the judgment sought to be reviewed takes a shape of a decree and 50% of the court fee was required to be paid, which has not been remitted, even otherwise also, if the judgment sought to be reviewed is taken into consideration, this Court has quite elaborately dealt with the aspect, that ever since institution of the First Appeals way back in 2018, several opportunities were granted by the Registrar (Judicial) w.e.f. 29th June, 2018, onwards till ultimately the First Appeal was dealt by this Court on 29th August, 2019, by dismissing the same under Order 7 Rule 11 (c). 18. If the procedural law, admittedly was not followed by the appellant to legally sustain his Appeal, and despite sufficient time has lapsed to comply the objection taken by the Registry, there is no other option except to proceed to decide the Appeal under Order 7 Rule 11 (c). 19. Hence, the order, which has been appealed, i.e. dated 29th August, 2019, does not suffer from any apparent anomaly as such, which would call for reviewing of a judgment. Consequently, the Review Applications would stand dismissed. All pending Applications would stand disposed of.