Civil Revision No. 2990 of 2000 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 2990 of 2000 Date of Decision: August 16, 2010 Harish Kumar ......... Petitioner versus Gian Chand and others .......... Respondents 1.Whether Reporters of local papers may be allowed to see the judgment ? 2. Whether to be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest? Present:- Ms. Kamalpreet Kaur, Advocate for the petitioner. Mr. L.N. Verma, Advocate for respondent No.1 HEMANT GUPTA, J. (Oral) The challenge in the present revision petition is to the order passed by the learned Additional District Judge, Sirsa, on 11.05.2000 whereby an application filed by the defendant-petitioner to extend the time to make up deficiency in the court fee on Memorandum of Appeal, was dismissed. The plaintiff – respondent filed a suit for specific performance of an agreement to sell dated 28.08.1986. The said suit was decreed on 12.03.1998. The operative part of the decree read as under:- “On ultimate analysis of my findings on the aforesaid issues, I decree the present suit partly regarding the share of defendant No.2 which comes to 1/9 share of land measuring 87 Kanals 19 Marlas on payment of remaining sale consideration to be calculated at the rate of Rs.7000/- per acre and Civil Revision No. 2990 of 2000 [2] after adjusting proportionate amount of earnest money, on or before 15.04.1998, failing which, suit of the plaintiff shall stand dismissed. Suit is decreed with proportionate costs qua defendant No.2, whereas the suit is dismissed qua remaining defendants. Decree be drawn accordingly and file be consigned to records”. An appeal against the aforesaid judgment and decree was filed by the defendant-petitioner on 21.04.1998. The necessity of appeal arose as on an application filed by the plaintiff, the court extended the period for depositing the balance sale consideration upto 16.04.1998 without issueing any notice to the petitioner. While filing Memorandum of Appeal, the appellant assessed the valuation for the purposes of court fee as Rs.8550/- and that the court fee of Rs.1134/- is to be affixed. Such was the amount mentioned in the opening page of Memorandum of Appeal. The note given at the foot of the grounds of appeal reads as under:- “ Note:- The value of appeal comes to Rs.8550/- & court fee of Rs.1134/- is to be affixed, but because of non-availability of court fee, a fixed court fee of Rs.10/- is paid & a deficiency shall be made good as and when ordered by the court”. After the plaintiff was served, an application for making up deficiency in the court fee was filed on 17.09.1998 along with court fee of Rs.1134/-. The said application was contested by the plaintiff-respondent and was dismissed by the learned First Appellate Court vide the order impugned in the present revision petition. At the outset, learned counsel for the respondent has raised preliminary objection that the Memorandum of Appeal has been rejected by the learned First Appellate Court and, therefore, revision is not maintainable as rejection of Memorandum of Appeal amounts to a decree and, therefore, it is an appealable order. The said contention of learned counsel for the respondent is not tenable in view of the judgment of Division Bench of this Civil Revision No. 2990 of 2000 [3] Court in case reported as Des Raj vs. Om Parkash and another, AIR 1986 Punjab and Haryana 3, wherein it has been held that rejection of Memorandum of Appeal for nonpayment of court fee is a revisable order. Learned counsel for the petitioner has vehemently argued that court fee of Rs.1134/- was payable on the Memorandum of Appeal. The said amount is mentioned in the opening page of grounds of appeal. At the foot of the grounds of appeal, a note has been given that the court fee of such denomination is not available and the same shall be affixed within the time granted by the Court. Since a note was given at the foot of the Memorandum of Appeal, the learned First Appellate Court, in view of the fact that court fee of the denomination was not available, should have extended the period for making good deficiency in court fee. The dismissal of application for the reason that separate application has not been filed along with the Memorandum of Appeal and that sufficient ground does not exist for making up deficiency good, is not tenable in law. Learned counsel for the respondent has relied upon two judgments of this Court reported as Anil Kumar and another vs. Satish Kumar and another, 1978 Revenue Law Reporter 88 and Nathu Ram vs. Hari Krishan and others, 1979(1) Rent Law Reporter 74 to contend that it is a bona fide mistake in calculation of appropriate court fee which can be condoned and not the intentional deficiency in affixing the appropriate court fee. Learned counsel for the respondent has also argued that court fee of Rs.1134/- is not the appropriate court fee. Having heard learned counsel for the parties at some length, I am of the opinion that the impugned order suffers from patent illegality and material irregularity which cannot be sustained in law. The petitioner has Civil Revision No. 2990 of 2000 [4] prayed for making up deficiency in court fee at the initial stage itself which is apparent from the foot note given in the Memorandum of Appeal. The reason for not fixing the court fee is non availability of required denomination of court fee. There is no averment in the reply filed by the respondent that court fee was, in fact, available. Even otherwise, appeal was filed within the period of limitation. The matter regarding affixation of court fee is primarily between the petitioner and the Court. Once a note was given by the petitioner that deficiency in the court fee will be made up subsequently, the learned First Appellate Court has failed to carry out its judicial discretion in not extending the period for making up deficiency in payment of court fee. The judgments referred to by learned counsel for the respondent are not applicable to the facts of the present case wherein finding has been recorded that there was lack of good faith and bona fide in making up the deficiency in court fee. Such is not the case in the present petition. The argument that court fee of Rs.1134/- is not the appropriate court fee is not the issue which is required to be examined by this Court at this stage. If the learned First Appellate Court finds that such court fee is deficient, the Court has the jurisdiction either to call upon the petitioner to make up deficiency in payment of court fee so determined or to pass such order as it deem appropriate. However, since as per valuation in the Memorandum of Appeal, court fee of Rs.1134/- is payable as, it cannot be said that such valuation cannot be allowed to be made up by the petitioner. Consequently, present revision is allowed and the order passed by the learned First Appellate Court is set aside. Civil Revision No. 2990 of 2000 [5] The parties are directed to appear before the learned District Judge, Sirsa, on 06.09.2010 for further proceedings in accordance with law. It shall be open to the learned District Judge to entrust the appeal to any other Court of competent jurisdiction. August 16, 2010 ( HEMANT GUPTA ) ks JUDGE