1 IN THE HIGH COURT OF BOMBAY AT GOA FIRST APPEAL NO. 224 OF 2009 1. Smt. Rajashri alias Rajani U. Bhakta, d/o. Late Manohar Naik Parulekar, married to 2. Shri Umesh Bhakta, Both residents of Altinho, Mapusa. 3. Geetanjali Sainath Patkar, d/o. Late Manohar H. Naik Parulekar, resident of Altinho, Mapusa. 4. Shri Sainath R. Patkar, since deceased represented by legal representatives: (a) Shri Rahul Sainath Patkar, (b) Kum. Natasha Sainath Patkar, both major of age, residents of Hill Crown Apts., Feira Alta, Mapusa, Goa. 5. Ms. Sita Manohar Naik Parulekar, d/o. late Manohar Naik Parulekar, r/o. Altinho, Mapusa. ... Appellants versus Smt. Maria Elsa de Noronha Wolfango Da Silva, widow of Fernando Bernardo de Noronha Wolfango da Silva, resident of Sawan, Maem, Bicholim, Goa. Since deceased represented by legal representatives: 2 (a) Shri Antonio S. C. Pereira and his wife, (b) Smt. Antonio S. C. Pereira both residents of Mayem, Bicholim, Goa. ... Respondents Shri J. J. Mulgaonkar, Advocate for the Appellants. Shri V. R. Tamba and Shri D. D. Zaveri, Advocates for the Respondents. CORAM : NARESH H. PATIL & N. A. BRITTO, JJ. DATE : 5TH FEBRUARY, 2010. JUDGMENT(Per N.A.BRITTO, J.) Admit. By consent heard forthwith. 2. This appeal is filed by the plaintiffs in Special Civil Suit No. 220/1993/A and is directed against a common Order dated 7-10-2009 of the learned Civil Judge, Senior Division, Panaji by which the application for amendment filed by the plaintiffs dated 22-4-2009 has been dismissed and the plaint in the suit has been rejected in terms of Order 7, Rule 11(d) C.P.C. 3. Some more facts are required to be stated to dispose of the present appeal and for that, the parties hereto shall be referred to in the names 3 as they appear in the cause title of the said civil suit. 4. The plaintiffs filed the suit on or about 27-9-1993 styling the same as a suit for “declaration and injunction” and with the allegation that the plaintiffs' predecessor Shri Manohar Hiru Parulekar had purchased the suit property by deed dated 10-1-1964, and, thereafter the property was inscribed in the Land Registration Office in the name of the said Manohar Hiru Parulekar, and was also recorded in city survey in his name and upon his death, in inventory proceedings held, it was allotted to plaintiff nos.1, 3 and 5 in equal shares, the plaintiff nos.2 and 4 being the spouses of plaintiff nos.1 and 3, and plaintiff no.4 being the nephew of the late Manohar Hiru Parulekar who is the attorney of plaintiff nos.1, 3 and 5 and who knew the facts even prior to the death of the said Manohar Hiru Parulekar. The case of the plaintiffs was that they were in possession of the suit premises either through self or through their predecessors for the last 29 years and with an allegation that the defendant had trespassed into the said house on or about 19-9-1993. The plaintiffs filed the suit with the following reliefs:- (a). It may be declared that the Plaintiffs are lawful owners of the suit property; (b) The Defendant, her agents, servants or any other person acting through her be restrained by temporary injunction from interfering with 4 possession of Plaintiffs in respect of suit property or attempting to dispossess the Plaintiffs therefrom; (c) Pending hearing and final disposal of the suit, interim relief in terms of prayer (b) be granted; (d) Prayer (c) be granted ex-parte as the service of notice will defeat the ends of justice. 5. The defendants contested the suit and also filed a counterclaim, for recovery of possession of the suit property from the plaintiffs, and for mesne profits. Written Statement to the counterclaim was filed on 20-8-1994. Issues were framed on 22-9-1997. Undervaluation, or consequently, payment of inadequate court fees was not a plea taken by the defendant. There was no issue framed as regards undervaluation. Plaintiffs application for temporary injunction was granted by the learned Civil Judge, Senior Division on 22-2-1996 by confirming the ex-parte Order dated 7-10-1993. There was also no plea raised at that time that there was no prayer for permanent injunction in the suit filed by the plaintiffs and therefore no temporary injunction could be granted. 6. On 13-4-2009, the defendant filed an application, styling the same to be an application for rejection of the plaint under Order 7, Rule 11(a) and/or (d) of C.P.C., and stating that the suit filed by the plaintiffs was for 5 declaration simpliciter and further stating that the incidental prayers in the plaint were only in the nature of interim reliefs and no prayer by way of further relief was sought, rendering the suit as a suit for declaration simpliciter only. The defendant stated that it was incumbent upon the plaintiffs to have asked for relief of permanent injunction by way of further relief and since the plaintiffs had not sought for a relief which was available and as the same could not be granted specially when further relief was barred by law of limitation, the suit was not maintainable and trying such a suit would only consume the precious time of the Court, and as such the plaint ought to be rejected in terms of Clause (d), Rule 11, of Order 7, C.P.C. 7. On 22-4-2009, the plaintiffs filed a reply to the said application and on the same day filed another application for amendment of the plaint. The case of the plaintiffs in the amendment application was that in prayer Clause (b) relief of perpetual injunction was applied for but by typographical error it was wrongly stated as temporary injunction. The plaintiffs further stated that in para 22 the plaintiffs had stated that they were entitled for an injunction and declaration, and in para 25 there was an averment about court fees payable for relief of injunction, and thus reading the aforesaid pleadings with the other averments in the plaint it was abundantly clear that the suit was for perpetual injunction and the defendant had also understood it as such. The plaintiffs therefore sought to substitute the word “temporary” with the word “perpetual” 6 in prayer clause (b), which mistake according to the plaintiffs, was patent and obvious. In other words by the said application for amendment the plaintiffs sought leave to substitute the word “temporary” with the word “perpetual”, in prayer clause (b) of the plaint. 8. The learned trial Court by common Order dated 7-10-2009 observed and, in our view rightly, that in case the plaintiffs succeeded in their amendment application then the application for rejection of the plaint would be liable to be dismissed. The learned trial Court came to the conclusion that the plaintiffs had filed the application for amendment after a lapse of 16 long years, and that the said amendment application was filed after the defendant had raised the controversy that the suit was hit by the proviso below Section 34 of the Specific Relief Act, 1963. The learned trial Court did not accept the explanation given by the plaintiffs, observing that in case there was a typographical error in the prayer clause in the plaint, the plaintiffs would have stated so in para 22 of the plaint which was an entitlement clause and further held that it was a post trial amendment and as such could not be allowed. The learned trial Court further held that it was incumbent on the plaintiffs to have sought for permanent injunction by way of further relief as the same was available to be asked for at the time of filing of the suit and the same could not be granted specially when it was barred by law of limitation and as such proceeded to dismiss the application for amendment filed by the plaintiffs, and 7 allow the application for rejection of the plaint, filed by the defendants. 9. As already stated, in case the application filed by the plaintiffs for amendment was allowed, the plaint could not have been rejected. Admittedly, this is an appeal filed against the order of rejection of plaint which in terms of Section 2(2), C.P.C. is deemed to be a decree against which an appeal is otherwise maintainable. 10. The first objection taken by Shri V. R. Tamba, learned Counsel appearing on behalf of the defendants, is that the appeal may be maintainable against that part of the order rejecting the plaint but it is not maintainable as regards that part of the order by which the application for amendment, has been rejected for according to the learned Counsel, the remedy against the latter part of the order would lie elsewhere and not before this Court. Learned Counsel submits that the impugned Order is in two parts. 11. On the other hand, Shri J. J. Mulgaonkar, learned Counsel on behalf of the plaintiffs submits that the plaintiffs are left with no remedy against the order of rejection of amendment application and that even a writ petition will not be maintainable now as against the said order as the suit itself has been dismissed. Learned Counsel has referred to Section 105 C.P.C. and has submitted that the order rejecting amendment application can be 8 challenged in an appeal against the order rejecting the plaint and in support thereof learned Counsel has placed reliance on the case of Achal Misra v. Rama Shanker Singh and others((2005) 5 SCC 531). 12. We are unable to accept the submission of Shri V. R. Tamba, learned Counsel. The impugned Order is in two parts. The order rejecting the plaint is entirely dependent on the Order rejecting the application for amendment. The defendants have invited an Order under Rule 11(c), Order 7, C.P.C. which position now learned Counsel fairly concedes and therefore it is not permissible for the defendants now to contend that the suit could be dismissed for various reasons, including for not seeking further relief in terms of the proviso below Section 34 of the Specific Relief Act. A Division Bench of Madhya Pradesh High Court in Smt.Chamarin v. Ms. Budhiyarin and another(AIR 1975 Madhya Pradesh 74) has held that an order, rejecting a plaint under Order 7, Rule 11 only amounts to Decree whereas rejection of a plaint on other grounds does not amount to a decree. Section 105, C.P.C. provides that save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction, but, where a decree is appealed from, any error, or defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground for objection in the memorandum of appeal. Section 105(2) precludes the appellant from taking, in an appeal from the final decree, an 9 objection that might have been urged by way of an appeal from an order of remand. Where a decree is appealed from, any error, defect, etc. in any order affecting the decision of the case may be set forth as a ground of objection against the decree. The words “any order” postulate that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay, an appeal was not taken, can be challenged in an appeal from final decree or order. The words “affecting the decision of the case” are also important. Orders which affect the ultimate decision of the case alone can be challenged in the appeal filed against the original decree. Even if there is any error, defect or irregularity in any other order, the aggrieved party is not entitled to challenge it against an appeal filed against the original decree unless it affects the decision appealed against. This position of law is no longer res integra. Way back in Satyadhyan Ghosal and others v. Smt. Deorajin Debi and another(AIR 1960 SC 941) the Apex Court had ruled that an interlocutory order which had not been appealed from either because no appeal lay or even though an appeal lay an appeal was not taken could be challenged in an appeal from the final decree or order. The Apex Court had further stated that a special provision was made as regards orders of remand and that was to the effect that if an appeal lay and still the appeal was not taken the correctness of the order of remand could not be later challenged in an appeal from a final decision. The Apex Court in Achal Misra v. Rama Shanker Singh and others(supra) has stated in para 12 that a party is not bound to appeal from 10 every interlocutory order which is a step in the procedure that leads to a final decree. It is open on appeal from such final decree to question an interlocutory order. The Apex Court reiterated the decision of Satyadhyan Ghosal and others v. Deorajin Debi and another(supra) and further held that the same principle was reiterated in Amar Chand Butail v. Union of India(AIR 1964 SC 1658). Admittedly, the present appeal is filed against the order rejecting the plaint which order is deemed to be a decree. There is also no dispute, as stated by the trial Court and reiterated by this Court that the order rejecting the plaint is entirely dependent on the order rejecting amendment application. Being so, the plaintiffs are entitled to challenge the said order of rejection of amendment application in an appeal filed against the order of rejection of plaint, in terms of Section 105 C.P.C. and the law laid down by the Apex Court in Satyadhyan Ghosal and others v. Smt. Deorajin Debi and another(supra). We are therefore not inclined to accept the first objection of the learned Counsel on behalf of the defendants. 13. The next objection taken on behalf of the defendants, by the learned Counsel, is that the present appeal is liable to be rejected in terms of Order 41, Rule 3, r/w Order 7, Rule 11(b) since inspite of having pointed out that advalorem court fees payable on the appeal based on valuation of the suit at Rs.89,00,000/- has not been paid nor an application under Section 149 C.P.C. filed for enlargement of time. On the other hand, it has been submitted 11 by Shri Mulgaonkar, learned Counsel on behalf of the plaintiffs that the plea of improper valuation or undervaluation was not raised by the defendants in their written statement before the learned trial Court inasmuch as no issue was also framed. It is also submitted that the trial Court has also not determined the said issue and as such the question of payment of advalorem court fees based on valuation of the suit, on the memorandum of appeal does not arise. 14. We are unable to accept the second objection raised on behalf of the defendants, as well. There is no dispute that court fees have been paid by the plaintiffs on the memorandum of appeal on the basis of the valuation done by the plaintiffs of the plaint regarding which the defendants had so far not raised an issue. According to the defendants, the plaintiffs were required to pay a minimum court fees of Rs.3000/- which have not been paid. 15. Section 149, C.P.C. provides that where the whole or any part of any fee 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 fee is payable, to pay the whole or part, as the case may be, of such court fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance. Order 7, Rule 11(b) C.P.C. further provides that where the relief claimed is undervalued, and the plaintiff, on 12 being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so, the plaint shall be rejected. As already stated whether the reliefs claimed by the plaintiffs were undervalued is not an objection taken by the defendants before the trial Court inasmuch as the same has also not been decided by the Court below. In fact, Shri Mulgaonkar, learned Counsel on behalf of the plaintiffs has submitted that in case such a point is raised by the defendant and the Court calls upon the plaintiffs to correct the valuation the plaintiffs will be ready and willing to correct the same. We are conscious of the fact that an appeal is a continuation of the suit. However, in our view since no issue of undervaluation was raised by the defendant before the learned trial Court nor a finding given by the learned trial Court on that aspect, the plaintiffs were bound to pay court fees on the memorandum of appeal on the basis of the valuation done by them before the learned trial Court. The defendants are always at liberty to raise such an issue if permissible in law before the trial Court. It is well settled that a plea which is not taken before the trial Court cannot be allowed to be taken for the first time in appeal. 16. The case of Jabar Singh and others v. Shadi and others(AIR 1975 P & H 373) stood on its own facts. Although it was observed therein that the provisions of Order 7, Rule 11 do not apply to appeals, what was held therein is that the appellant could not be given opportunity to make up the 13 deficiency in court fees after expiry of the period of limitation in preferring the appeal. In the case of Phalton Bank Ltd. v. Baburao Appajirao and another(AIR 1954 Bombay 43) a Division Bench of this Court observed that under Order 41, Rule 3, an appellate Court is expressly empowered to reject a memorandum of appeal if it is satisfied that the memorandum is not drawn up in the manner as prescribed. But this does not mean that the appellate Court's power to reject the memorandum of appeal is confined only to the cases falling within Rule 3, Order 41. It is well settled that reading the provisions of Section 107, Sub-Section(2), and Order 7, Rule 11, together, the Court of appeal would be entitled to reject the memorandum of appeal on any of the grounds mentioned in Order 7, Rule 11. Amongst the grounds on which a memorandum of appeal can thus be rejected under Order 7, Rule 11, failure of the appellant to pay the requisite court fee is included, and, therefore the Phaltan High Court had jurisdiction to reject the memorandum of appeal on the ground that it was written upon an insufficiently stamped paper, and the order which was passed while rejecting this memorandum must be construed as an order of rejection inspite of the fact that in form it purported to be an order of dismissing the appeal and though a formal decree including the said decision has been drawn. 17. Considering the facts of the case, and the view we have taken in our opinion, the case of P. K. Palaniswamy v. N. Arumugham and another 14 ((2009) 9 SCC 173) is of no assistance to the case of the plaintiffs as rightly pointed out on behalf of the defendants. That was a case where a suit for recovery of money was filed on 5-10-1998 with a court fee of Re.1/- only, and then an application was filed under Section 148 r/w Section 151, C.P.C. seeking six weeks' time to pay the deficit court fee which time was granted and then again on 8-11-2008, another application was filed for extension of time by eight weeks which was also granted and deficit court fee was paid on 17-2-1999, which was accepted by the trial Court. Thereafter, it appears that the plaint was re-presented with an application for condonation of delay of 272 days which was allowed by the trial Court by Order dated 2-11-2000. The re-presentation of the plaint was done with an application for attachment. The defendants had put their appearance on 10-1-2001 but in the written statement filed on 17-2-2003, no objection was raised with regard to delay in payment of court fees inasmuch as no issue in that behalf was also framed, and thereafter as the defendants remained absent and an ex-parte decree followed on 29-9-2004. Then came an application on behalf of the defendants to set aside the ex-parte order after a gap of 289 days which was allowed by the trial Court but the plaintiffs preferred a revision under Article 227 of the Constitution and the suit was revived by Order dated 8-6-2007 on a condition that the defendants paid a sum of Rs.3,00,000/-. Even at that stage, no objection was taken as regards non deposit of court fee within a reasonable time. Thereafter, the defendants filed an application after the plaintiffs evidence was over 15 seeking rejection of the plaint in terms of Order 7, Rule 11, C.P.C. claiming that the suit was barred by time and the extension of time granted was without notice to the defendants. That application was dismissed by the learned trial Court but that order came to be reversed by the High Court and the High Court Order in turn came to be reversed by the Apex Court and in doing that the Apex Court, inter alia, observed as follows:- “17. Payment of court fee furthermore is a matter between the State and the suitor. Indisputably, in the event a plaint is rejected, the defendant would be benefited thereby, but if an objection is to be raised in that behalf or an application is to be entertained by the court at the behest of a defendant for rejection of the plaint in terms of Order 7 Rule 11(c) of the Code, several aspects of the matter are required to be considered. Once an application under Section 149 is allowed, Order 7 Rule 11(c) of the Code will have no application. It is for that additional reason, the orders extending the time to deposit deficit court fee should have been challenged. 18. Filing of an application for rejection of plaint in a case of this nature as also having regard to the events which have taken place subsequent to registration of the suit appears to us to be mala fide. If the learned trial Judge did not entertain the said plea, the High Court should not have interfered therewith. 16 19. The respondents in their written statement did not raise any issue with regard to the correctness or otherwise of the orders dated 7-10-1998, 8-11-1998, 20-11-1998 and 21-1-1999. Rightly or wrongly, the plaint was accepted. The deficit court fee has been paid. The court was satisfied with regard to the bona fide of the plaintiff. Hearing of the suit proceeded; not only issues were framed but the witnesses on behalf of the parties were also examined by both the parties. 20. It is difficult to believe that from 10-1-2001 to 4-1-2008, the respondents or their counsel did not have any occasion to inspect the records. Any counsel worth itself would not only do so but even without doing so would address himself a question as to why a suit filed on 4-10-1998 was entertained in the year 2000. The suit was at one point of time decreed ex parte. The same was set aside on certain conditions. Evidently, the conditions laid down had been satisfied only upon obtaining an extension of time. 30. An application for rejection of the plaint was filed only in the year 2008. Evidently, that was not the stage for entertaining the application. Order 7 Rule 11(c) of the Code could not have been invoked at that point of time. 37. The abovesaid dicta were reiterated by a three-Judge Bench of this Court in Ganapathy Hegde v. Krishnakudva in the following words:(SCC pp.539-40, para