# Ram Krishna Dhandhania & anr v. Civil Judge, Kanpur Nagar and others

- **Citation:** (2005) 2 ILRA 618
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-07-12
- **Case number:** Civil Misc. Writ Petition No.48422 of 2005
- **Bench:** Dr. B.S. Chauhan, Dilip Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-krishna-dhandhania-anr-v-civil-judge-kanpur-nagar-and-others-40496
- **Pages:** 5

## Headnote

Court Fee Act 1870 (as amended upto
date in State of U.P.)-Section 12-Court
fee deficiency right defendant-objections
of valuation and deficiency of Court feedecision taken by the Trail Court shall be
final-unless the valuation suggested by
the defendant affects the jurisdictionright to question the decision of Trail
Court by defendant can not be exercised.

Held: Para 17

Thus, in view of the above, the legal
position can be summerised 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.
Case law discussed:
1957 ALJ-53
AIR 1953 SC-28
AIR 1968 Alld.-216 (FB)
AIR 1978 Alld.-21
AIR 1961 Ker. 142
AIR 1934 Alld.-620
AIR 1934 Oudh 396
AIR 1961 SC-1299
AIR 1973 SC-2384
AIR 1996 Mad-440
AIR 1978 P &H. 25
AIR 1991 Noc 53 Raj
AIR 1951 Alld. 59
1969 (3) SCC-392
AIR 1984 SC-273
AIR 1980 SC-1170
AIR 1991 SC-1617
AIR 1980 SC-1170
1994 (4) SCC-422
2002 (8) SCC-868

## Text

INDIAN LAW REPORTS ALLAHABAD SERIES [2005
618
not taken place in accordance with law.
Findings of fact recorded by courts below
were arrived at on appraisal of evidence
of the parties on record. There is no error
of law apparent on the face of record.

Writ Petition lacks merits and is
dismissed.

Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: 12.07.2005

BEFORE
THE HON'BLE DR. B.S. CHAUHAN, J.
THE HON'BLE DILIP GUPTA, J.

Civil Misc. Writ Petition No.48422 of 2005

Ram Krishna Dhandhania and another

 ...Petitioners
Versus
Civil Judge (Senior Division), Kanpur
Nagar and others
 ...Respondents

Counsel for the Petitioners:
Sri P.K. Srivastava

Counsel for the Respondents:

Court Fee Act 1870 (as amended upto
date in State of U.P.)-Section 12-Court
fee deficiency right defendant-objections
of valuation and deficiency of Court feedecision taken by the Trail Court shall be
final-unless the valuation suggested by
the defendant affects the jurisdictionright to question the decision of Trail
Court by defendant can not be exercised.

Held: Para 17

Thus, in view of the above, the legal
position can be summerised 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.
Case law discussed:
1957 ALJ-53
AIR 1953 SC-28
AIR 1968 Alld.-216 (FB)
AIR 1978 Alld.-21
AIR 1961 Ker. 142
AIR 1934 Alld.-620
AIR 1934 Oudh 396
AIR 1961 SC-1299
AIR 1973 SC-2384
AIR 1996 Mad-440
AIR 1978 P &H. 25
AIR 1991 Noc 53 Raj
AIR 1951 Alld. 59
1969 (3) SCC-392
AIR 1984 SC-273
AIR 1980 SC-1170
AIR 1991 SC-1617
AIR 1980 SC-1170
1994 (4) SCC-422
2002 (8) SCC-868

(Delivered by Hon'ble Dr. 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 & Anr.
Vs. Prem Shanker Pandey & Anr., which
is not taking any progress in view of the
objections raised by the defendantrespondents 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
2 All] Ram Krishna Dhandhania & anr. V. Civil Judge, Kanpur Nagar and others 619
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
'C.P.C.') vide order dated 22.01.2004. By
consent of the parties valuation of the suit
stood
enhanced
and
the
petitionerplaintiffs 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 re-determine 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 18.09.2004,
which is quoted below:-
"18.09.2004. Case called out. Parties
counsels are present. Application 90C to
recall the order dated 21.08.2004. It is
filed
by
the
defendant.
Opposed.
Objection is 91C. Heard. Order dated
21.08.2004 has been passed after hearing
both the learned counsels of the parties.
Reported 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."

Again, the defendants-respondents
filed another application to recall the said
order, which is still pending.

3. 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.

4. 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 defendantrespondents, as we are not deciding the
issue on facts. The issue for determination
is
as
to
whether
the
defendantrespondents have any right to challenge
the adequacy of court fee paid by the
plaintiff-petitioners in the suit.

5. 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.
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
620
6. 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 Vs. Lala Ramesh Chandra, 1957
ALJ 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 & Anr Vs. Edward Mills Co. Ltd.
& Anr, AIR 1953 SC 28); Smt. Bibbi &
Anr Vs. Shugan Chand & Ors, AIR 1968
Alld. 216 (F.B.); and Mohd. Ajmal Vs.
Firm Indian Chemical Co. & Ors, AIR
1978 Alld. 21).

7. In Bhikamdas Balaram & Ors. Vs.
Motilal Gambhirmal, AIR 1958 Bom.
307, 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.

8. In Zainabey Razak Vs. Noor
Mohammed Rothan, AIR 1961 Ker.146, 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 Vs. Varathan Nadar Krishnan
Nadar & Ors., AIR 1961 Ker.142.

9. A Full Bench of the Allahabad
High Court, however, in Messrs. Gupta &
Co. Vs. Messrs. 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.

10. Similar view has been reiterated
in Lachhmi Narayan Vs. Secretary of
State, AIR 1934 Oudh 396.

In S. Rm. Ar. S. Sp. Sathappa
Chettiar Vs. S. Ar. Rm. Ramanathan
Chettiar, AIR 1958 SC 245, 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).

11. In Sri Rathnavarmaraja Vs. Smt.
Vimla, AIR 1961 SC 1299, 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 re-considered and
2 All] Ram Krishna Dhandhania & anr. V. Civil Judge, Kanpur Nagar and others 621
approved in Shamsher Singh Vs. Rajinder
Prashad & Ors., AIR 1973 SC 2384,
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."

12. The Hon'ble Supreme Court
further approved the judgment of the
Kerala High Court in Vasu Vs. Chakki
Mani, AIR 1962 Ker. 84, 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.

13. In G. Krishnamurthy & Ors. Vs.
Sarangapani & Anr., AIR 1996 Mad. 440,
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....."

14. Similar view has been reiterated
by the Full Bench of the Punjab High
Court in M/s. Arjan Motors Malout
Partnership Firm Vs. Girdhara Singh &
Ors, AIR 1978 P&H 25; by the Andhra
Pradesh High Court in Subhadramma Vs.
Palaksha Reddy & Ors., AIR 1975 AP
165; and M/s. Kamal Engg. Works Vs.
Ashwani Kumar & Ors., AIR 1991 NOC
53 (Raj.)

15. 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 & Ors. Vs. Tota Ram, AIR
1929 Alld. 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 Vs. Isar Banu urf Isar Fatma,
AIR 1951 Alld. 59. 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.

16. Validity of an order is to be
tested on the touch-stone of doctrine of
prejudice. (Vide Jankinath Sarangi Vs.
State of Orissa, (1969) 3 SCC 392; K.L.
Tripathi Vs. State Bank of India & Ors,
AIR 1984 SC 273; Sunil Kumar Banerjee
Vs. State of West Bengal & Ors., AIR
1980 SC 1170; Maj. G.S. Sodhi Vs.
Union of India, AIR 1991 SC 1617;
Managing Director, ECIL, Hyderabad &
Ors. Vs. B. Kanunakar & Ors., AIR 1994
SC 1074; Krishan Lal Vs. State of J&K,
(1994) 4 SCC 422; State Bank of Patiala
& Ors. Vs. S.K. Sharma, AIR 1996 SC
1669; S.K. Singh Vs. Central Bank of
India & Ors., (1996) 6 SCC 415; State of
U.P. Vs. Harendra Arora & Anr., AIR
2001 SC 2319; Oriental Insurance Co.
Ltd. Vs. S. Balakrishnan, AIR 2001 SC
INDIAN LAW REPORTS ALLAHABAD SERIES [2005
622
2400; and Debotosh Pal Choudhury Vs.
Punjab National Bank & Ors., (2002) 8
SCC 68).

17. Thus, in view of the above, the
legal position can be summerised 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.

18. 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.
 Petition disposed of.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.07.2005

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No. 14893 of 1989

Natthu Ram

...Petitioner
Versus
VII Additional District Judge, Varanasi
and others

 ...Opposite Parties

Counsel for the Petitioner:
Sri A.C. Tripathi

Counsel for the Opposite Parties:
Sri Shashi Nandan
S.C.

U.P.
Urban
Building
(Regulation
of
letting Rent and Eviction) Act 1972Section 21-Release application on the
ground of bonafide need of land lordproperty in dispute of 3 shops on
monthly rent of Rs.20/- during pendency
of writ petition-one shop just adjust to
the land lord shop vacated-after getting
possession-the
land
lord
demolished
adjoining wall and converted the two
shops into one-held-need of land lords
stand satisfied-but considering law laid
down in Khursheeda's case the rent
enhanced from Rs.20/- to 500/- per
month.

Held: Para 1, 3 and 4

After filing of writ petition Sahdeo
entered
into
compromise
with
the
landlady and vacated the shop in his
possession. The shop vacated by Sahdeo
in the year 1990 was adjacent to the
shop in possession of the petitioner
landlord. After getting possession of the
said
shop,
landlord
demolished
the
adjoining wall and converted the two
shops to one big shop. This fact is not
denied by the learned counsel for the
petitioner.