Shri Mati Morni Devi vs Iqbal Singh

V.K. Jhanji, J.—This will dispose of Civil Revision No. 2154, 2155 and 2156 of 1980.

Morni Devi (petitioner herein) filed three separate applications before the Rent Controller for fixation of fair rent in respect of three shops namely shop No. 8863/5 in possession of Iqbal Singh, tenant, shop No. 8864/5 in occupation of Avinash Chander, tenant. It was alleged in the applications that initially, the shops were let out to Iqbal Singh at the rate of Rs. 70/- per month; Om Parkash and Avinash chander at the rate of Rs. 65/- per month respectively. Prior to filing of the present applications for fixation of fair rent, in earlier litigation between the parties, P. K. Mahajan, J. (as his lordship then was) in Civil Revision No. 871 of 1971 decided on 2-11-1972, had fixed the fair rent of the shop in occupation of Iqbal Singh at Rs. 16/- per month, and Rs. 18/- respectively for the shops in occupation of Om Parkash and Avinash chander. The present applications were filed on coming into force of Haryana Urban (Control of Rent and Eviction) Act, 1973. In the said applications, it was claimed that fair rent be fixed at Rs. 70/- per month.

On contest by the tenants, the rent Controller, fixed Rs. 31/- as fail rent vide his order dated 12-11-1979. The said order was challenged by the petitioner before the appellate Authority. On the memorandum of Appeal, instead of affixing a court-fee of Rs. 50/-, the petitioner affixed a court-fee of Rs. 15/-. All the three appeals were rejected by the appellate Authority only on the ground that the petitioner failed to affix the proper court-fee on the memorandum of appeal. This order is being challenged by the petitioner in these revision petition.

The State of Haryana vide Haryana Act No. 11 of 1974 made certain amendments in the Court Fee Act, 1870 in its application to the State of Haryana. Under Article 16 of Schedule (2) of the Haryana Act No. 11 of 1974, the Court-fee payable on the application for fixation of rent is as follows :-

(a) Upto annual rent not exceeding six hundred rupees; Fifteen rupees (b) Annual rent exceeding six hundred rupees; Fifteen rupees

In view of the aforesaid amendment, the court-fee payable on Memorandum of Appeal was admittedly Rs. 50/- whereas the petitioner had affixed only Rs. 15/- as court-fee. The appellate Authority relaying upon the Division Bench judgment of this Court in Jabar v. Shadi (1978) 80 P. L. R. 681 dismissed the appeal without calling upon the petitioner to make up the deficiency in the court fee.

Mr. H. L. Sarin, learned counsel for the respondent, referred to a Full Bench decision of this court in Raj Kumar alias Prithvi Singh v. Amar Singh and Ors. (1980)2 I. L. R. P & H 463. and contended that the provisions of Order 7 Rule 11(c) of the Code of Civil Procedure, do not apply to appeals and therefore, the appellate Authority without calling upon the petitioner to make up the deficiency in the court-fee, was entitled to reject the appeal if the full court fee had not been paid.

Mr. Raman Mahajan, learned counsel for the petitioner fairly conceded that, in view of the Full Bench decision of this Court in Raj Kumar alias Prithvi Singh''s case (supra), the appellate Authority was not bound to call upon the petitioner to make up the deficiency in the court fee before rejecting the appeal. He however, contended that the appellate Authority ought to have allowed the petitioner to make up the deficiency in the court-fee in exercise of its discretion u/s 149 of the Code of Civil Procedure.

After hearing learned counsel for the parties, lam of the view that in view of the Full Bench decision of this Court in Raj Kumar alias Prithvi Singh''s case (supra) it was within the jurisdiction of the appellate Authority to reject the appeal without calling upon the petitioner to make up the deficiency in the court-fee. However I find force in the second contention of learned counsel for the petitioner that the appellate Authority ought to have exercised its discretion u/s 149 of the Code of Civil Procedure, in permitting the petitioner to make up the deficiency in the court-fee. u/s 149 of the Code of Civil Procedure, the Court in its discretion is always empowered to allow a person to make up the deficiency in the court fee, even at the stage of appeal. The petitioner preferred appeals within the period of limitation, against the order dated 12-11- 1979 passed by the Rent Controller. At the time, when the appeals were preferred, no objection whatsover was raised by the Registry Even when the appeals came up for preliminary hearing, the same, were admitted and objection with regard to the deficiency in the court-fee was also not raised. It was only at the time of final hearing of the appeals and that too on the objection raised by the tenant, the same were rejected Therefore, in these circumstances, it can safely be inferred that failure to pay the requisite court-fee was due to bona fide mistake on the part of the petitioner. Thus, I am. of the view that the petitioner is entitled to the extention of time for making up the deficiency in the court-fee.

Consequently, the revision petitions are allowed and the orders of the appellate Authority are set aside. The petitioner is allowed two month''s time from today for making up the deficiency in the court fee.

9 Parties through their counsel are directed to appear before the Appellate Authority, Ambala on 1 6-1992.