Jamana Lal vs Banshi Lal
2022 Latest Caselaw 4175 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Civil First Appeal No. 392/2019

1. Jamana Lal S/o Shri Lalu Ji Usta, Aged About 56 Years, R/o Azad Mohalla, Salumber, District Udaipur (Rajasthan)

2. Hasmukh S/o Shri Laluji Usta, Aged About 54 Years, R/o Azad Mohalla, Salumber, District Udaipur (Rajasthan)

----Appellants

Versus

1. Banshi Lal S/o Shri Lalu Ji Usta, Aged About 53 Years,

2. Ramesh S/o Shri Lalu Ji Usta, Aged About 48 Years, Both R/o Azad Mohalla, Salumber, District Udaipur (Rajasthan)

3. Smt. Kanta D/o Shri Lalu Ji Usta, Aged About 59 Years, W/o Shri Devkishan, R/o Azad Mohalla, Salumber, District Udaipur (Rajasthan) At Present residing at Near Shiv Mandir, Savina Khera, Udaipur, District Udaipur (Rajasthan)

----Respondents

For Appellant(s) : Mr. Shambhoo Singh Rathore For Respondent(s) : Mr. Deelip Kawadia

HON'BLE MR. JUSTICE RAMESHWAR VYAS

Judgment

15/March/2022

The matter comes upon an application (1/2020) under

Section 151 Code of Civil Procedure filed by the plaintiff-

respondents seeking dismissal of the present appeal filed against

him by the defendant for non-payment of requisite court fees.

(2 of 3) [CFA-392/2019]

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, plaintiff-

respondents 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.

Heard the learned counsel for the parties and perused

the material available on record.

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

(3 of 3) [CFA-392/2019]

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.

In view of above, the defendant-appellants are directed

to pay requisite court fee within a period of two weeks.

The application (No.1/2020) stands disposed of.

(RAMESHWAR VYAS),J 36-Mak/-

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