JUDGMENT B.S. Chauhan, J.
1. This writ petition has been filed seeking a direction to the learned Civil Judge (Senior Division), Kanpur Nagar to expedite the trial of the Suit No. 378 of 2000, Ram Krishna Dhandhania v. Prem Shanker Pandey, which is not taking any progress in view of the objections raised by the defendant-respondents in respect of the payment of Court-fees.
2. The facts and circumstances giving rise to this case are that the petitioners are purchaser of the property in dispute in which the defendants 2 and 3 had been tenants. At the time of purchasing the said property, petitioners entered into an agreement with the said defendant-respondents to allot them the area equivalent to 50% of the total area which had been in their possession prior to purchase of the said property. Certain amount of security has been deposited with the said defendant-respondents till the construction is completed and the possession is handed over to them after reconstruction. In that agreement, it was mentioned that the said defendants had been in possession to the extent of 1550 sq. ft. However, subsequently, it was found that they were in possession of only 485 sq. ft. Thus, rectification of the Deed was sought and as it was not made, the petitioners-plaintiffs filed the suit for rectifying the said agreement on various grounds. Written statement and replications have been filed; 12 issues have been framed and two of them relate to the payment of court-fee, namely (1) whether the suit is undervalued and (2) whether the court-fee paid is insufficient. These issues have been decided as a primary issues in view of the provisions of Order XIV, Rules 1 and 2 of the Code of Civil Procedure (hereinafter called the 'CPC') vide order dated 22-1-2004. By consent of the parties valuation of the suit stood enhanced and the petitioner-plaintiffs deposited the required court-fee on the valuation agreed by the parties. However, application was filed by the defendant-respondents to recall the said order and to redetermine the whole issue. The trial Court after hearing the learned counsel for the parties on the said application and objections, rejected the application by an order dated 18-9-2004, which is quoted below :--
"18-9-2004. Case called out. Parties counsel are present. Application 90C to recall the order dated 21-8-2004. It is filed by the defendant. Opposed. Objection is 91C. Heard. Order dated 21-8-2004 has been passed after hearing both the learned counsel of the parties. Report submitted by the Munsarim has been accepted by the Court. Hence it cannot be reagitated in this Court. Application 90C therefore is rejected. Fix 11-10-2004 for evidence."
3. Again, the defendants-respondents filed another application to recall the said order, which is still pending.
4. As the petitioner-plaintiffs feel that the suit is being delayed on one ground or the other, they have approached this Court by filing this writ petition for a direction to expedite the trial of the suit.
5. The petition could have been disposed of with a direction to the Court concerned to expedite the trial of the suit but Mr. P. K. Srivastava, learned counsel for the petitioners submitted that it would be better to clarify the legal position so that the learned trial Court may proceed and decide the said application. Notices have not been issued to the defendant-respondents, as we are not deciding the issue on facts. The issue for determination is as to whether the defendant-respondents have any right to challenge the adequacy of court-fee paid by the plaintiff-petitioners in the suit.
6. The issue is required to be decided in view of the provisions of the Court-fee Act, 1870 (as amended, updated and applied in the State of U.P.) read with Section 149 and Order VII, Rule 11, C.P.C.
7. Section 12 of the Act, 1870 deals with the decision of question as to valuation and it provides that such an issue shall be decided by the Court in which the plaint is filed and such decision shall be final between the parties to the suit. Thus, it is evident from the provisions of Section 12 of the Act, 1870 that the decision taken by the Court on such an issue shall be final between the parties but in case the superior Court while exercising the appellate or revisional jurisdiction comes to the conclusion that the issue has wrongly been decided to the detriment of the revenue. It can direct the party to make the deficiency good for the reasons that the object of the Act is not to arm a litigant with a weapon of technicality but to secure the revenue. (Vide Lala Ram Babu v. Lala Ramesh Chandra, 1957 All LJ 53). The finality is, however, with respect to arithmetical calculation and not with respect to classification, i.e. category under which the suit falls. (Vide Nemi Chand v. Edward Mills Co. Ltd., ); Smt. Bibbi v. Shugan Chand, (FB); and Mohd. Ajmal v. Firm Indian Chemical Co., ).
8. In Bhikamdas Balaram v. Motilal Gambhirmal, , the Bombay High Court held that an erroneous decision to the effect that a suit fell under a particular category for the purpose of court-fee was open to revision for the reason that the jurisdiction of the Court might be affected by the decision.
9. In Zainabey Razak v. Noor Mohammed Rothan, , a Full Bench of Kerala High Court held that revision at the behest of the defendant against the order passed by the trial Court deciding the suit, fell under a particular category was valid. The same view was reiterated in Sankaran Nadar Lekshmanan Nadar v. Varathan Nadar Krishnan Nadar, .
10. A Full Bench of the Allahabad High Court, however, in Gupta & Co. v. Kripa Ram Brothers, AIR 1934 All 620, held that a decision in the trial of a suit as to the amount of court-fee is not an independent proceeding and, therefore, not open to revision or challenge by the defendants.
11. Similar view has been reiterated in Lachhmi Narayan v. Secretary of State, AIR 1934 Oudh 396.
In S. Rm. Ar. S. Sp. Sathappa Chettiar v. S. Ar. Rm. Ramanathan Chettiar, , the Hon'ble Supreme Court held as under :--
"Normally the dispute between the litigant and the Registry in respect of court-fee, arises at the initial stage of the presentation of the plaint or the appeal and the defendant or the respondent is usually not Interested in such a dispute unless the question of payment of court-fees involves also the question of jurisdiction of the Court either to try the suit or to entertain the appeal."
(Emphasis added)
12. In Sri Rathnavarmaraja v. Smt. Vimla, , the Hon'ble Supreme Court held that whether proper court-fee has been paid or not, is an issue between the plaintiff and the State and that the defendant has no right to question it in any manner. The said judgment of the Apex Court was reconsidered and approved in Shamsher Singh v. Rajinder Prashad, , observing as under :--
"The ratio of that decision was that no revision on a question of court-fee lay where no question of jurisdiction was involved."
13. The Hon'ble Supreme Court further approved the judgment of the Kerala High Court in Vasu v. Chakki Mani, , wherein it was pointed out that no revision would lie against the decision on the question of adequacy of court-fee at the instance of the defendant unless the question of court-fee involves also the question of jurisdiction of the Court.
14. In G. Krishnamurthy v. Sarangapant, , the Madras High Court held that "primarily the issue regarding court-fee is essentially a matter in between the Court and the suitor and the finding rendered by the Court cannot be said to have caused any prejudice to the defendant...."
15. Similar view has been reiterated by the Full Bench of the Punjab High Court in Arjan Motors Malout Partnership Firm v. Girdhara Singh, AIR 1978 P & H 25; by the Andhra Pradesh High Court in Subhadramma v. Palaksha Reddy, ; and Kamal Engg. Works v. Ashwani Kumar, AIR 1991 NOC 53 (Raj).
16. Deficiency of court-fees is an important issue and has to be decided also giving combined effect to the provisions of Section 149 and Order VII, Rule 11, C.P.C. and both the said provisions provide that if there is a deficiency of court-fee, the Court must give time to make the deficiency good and if during that period, the amount of court-fee is paid, the plaint takes its effect from the date of its original presentation. (Vide Brijbhukhan v. Tota Ram, AIR 1929 All 75). In this respect, the decision has to be based on judicial discretion and cannot be made arbitrarily, as held by the Full Bench of this Court in Wajid Ali v. Isar Banu urf Isar Fatma, . Section 149, C.P.C. provides that where the whole or any part of the court-fees 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 fees is payable to pay the whole or part, as the case may be, of such court-fees and upon such payment, the document in respect of which fee is payable shall have the same force and effect as if such fees had been paid in the first instance.
17. Validity of an order is to be tested on the touch-stone of doctrine of prejudice. (Vide Jankinath Sarangi v. State of Orissa, ; K.L. Tripathi v. State Bank of India, ; Sunil Kumar Banerjee v. State of West Bengal, ; Maj. G.S. Sodhi v. Union of India, ; Managing Director, ECIL, Hyderabad v. B. Karunakar, ; Krishan Lal v. State of J. & K., ; State Bank of Patiala v. S.K. Sharma, ; S.K. Singh v. Central Bank of India, ; State of U.P. v. Harendra Arora, ; Oriental Insurance Co. Ltd. v. S. Balakrishnan, AIR 2001 SC 2400; and Debotosh Pal Choudhury v. Punjab National Bank, .
18. Thus, in view of the above, the legal position can be summarized that the defendant has a right to raise all objections on the valuation and deficiency of the court-fees. The matter is to be adjudicated upon and decided by the Court under Section 12 of the Act, 1870 and the decision so taken by the trial Court shall be final. The defendant cannot raise the grievance against the said decision unless the valuation suggested by him affects the jurisdiction of the Court. However, the appellate or revisional Court always can test the issue suo motu and make the deficiency good as the purpose of the Act is not only fixing the pecuniary jurisdiction of the Court but also creating revenue for the State.
19. In view of the above, we dispose of this writ petition requesting the learned Civil Judge (Senior Division), Kanpur Nagar to decide the said application for recall filed by the defendant-respondents finally in the light of the law laid down above as early as possible and to expedite the trial of the Suit giving strict adherence to the provisions of Order XVII, Rule 1, C.P.C. and conclude the same as early as possible.