Uttarakhand High Court
Brijbhushan & Anr. ... vs Geeta Malik & Anr on 2 December, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
Writ Petition No. (M/S) 2541 of 2021
Brijbhushan & Anr. ..........Petitioners
-Versus-
Geeta Malik & Anr. .......Respondents
Present:
Mr. Nikhil Singhal, the learned counsel for the respondent.
Sri S.K. Mishra, J.
Date of hearing and order
02.12.2021
1. Heard Mr. Nikhil Singhal, the learned counsel for
the petitioner.
2. In this writ application, the petitioner has
assailed the order passed by the learned 1st Addl. Civil
Judge (JD), Roorkee, Haridwar, in O.S. No. 57 of 2010
on 16.11.2017 and also the order dated 06.09.2021,
passed by the learned 2nd Addl. District Judge,
Roorkee, Haridwar in Civil Revision No. 3 of 2018.
3. As per the provision of Section 7 of the Court
Fees Act, 1870, (hereinafter referred to as the Act ), a
suit between landlord and tenant.-(xi)- for the relief of
recovery of the occupancy; recovery of occupancy of
immovable property from which a tenant has been
illegally ejected by the landlord; court fee according to
the amount of rent of immovable property to which
the suit refers payable for the year next before the
date of presenting the plaint, except in the case of
suits falling under clause (h) (for determination of
rent) in which, according to twice the amount claimed
by the plaintiffs to be the annual rent.
4. It is settled principle of law that amount of court
fee to be paid, is the matter between the court and
the plaintiff where the defendant do not have any say
unless it relates to a pecuniary jurisdiction of the
court, and that to such issue shall not be decided as a
preliminary issue. So in normal cases, an issue
relating to sufficiency or insufficiency of the court fee
shall not be taken of by the court, as such applications
and ancillary proceedings fracture the civil
proceedings which impact the final disposal of the
suits pending before the trial court. Moreover, the
order passed by the learned 1st Addl. Civil Judge (Jr.
Div.), Roorkee, appears to be incorrect as he has
ignored the provisions of Section 7 of the Act which
has been referred to above relating to any proceeding
between the landlord and the tenant.
5. In this connection, we also took into
consideration the reported case of Tejender Singh
Ghambhir & another vs. Gurpreet Singh & others,
(2014) 10 SCC 702, wherein at para 11, the Hon'ble
Apex Court has held that deficiency in court fee in
respect of the plaint can be made good during the
appellate stage. The Hon'ble Apex Court recognized
the well known legal position that an appeal is
continuation of the suit.
6. Hence, writ petition is disposed of giving liberty
to the petitioner to file an appropriate application
before the learned 1st Addl. Civil Judge (Jr. Div.),
Roorkee, Haridwar, for recall of the order dated
16.11.2017, which is impugned in this case. The
learned Judge in purporting exercise of the jurisdiction
under Section 151 of the Code of Civil Procedure, shall
reconsider the matter without being influenced by the
order passed by him, strictly in conformity with the
law laid down by various judgment of the High Court
as well as of the Hon'ble Supreme Court and also the
observations made by this Court within 15 days of the
filing of the application along with certified copy of
this order. In the meantime, if the suit is not already
dismissed, suit will not be dismissed for non payment
of the court fee for the next 30 days.
7. There shall be no order as to costs.
8. Urgent certified copies of this order be provided
as per rules.
(S.K. Mishra)
Judge
PV
