Sixth Sense Astro Gurukul vs Vishwanath Pandey, Advocate

Arun Tandon and Abhai Kumar, JJ.—This first appeal has been by the appellants under Section 96 of Civil Procedure Code against the judgment and decree of the trial court dated 18.2.2016 passed by Civil Judge (S.D.), Varanasi in Original Suit No. 1190 of 2015, Sixth Sense Astro Gurukul and another v. Vishwsanath Pandey and others.

Under the order impugned, the trial court after considering the objections raised on behalf of the defendants with regard to relief clause and the valuation of the suit, determined issue of proper relief and the amount of court fees actually payable. A reasoned order was made on 4.12.2015 requiring the plaintiff to amend the relief clause by praying for cancellation of sale deed etc. and further to pay court fees in accordance with the amended relief clause. It is also recorded that time granted for the purpose under the order dated 4.12.2015 was till the next date of listing which was expired on 10th December, 2015. On which date the plaintiff made an application for further time which was granted. Successively time for that purpose was granted. Even than, neither the amendment was carried out nor the court fees was made good. In the circumstances, the trial court has proceeded to pass the order rejecting the plaint under Orders VII Rule 11 Clause b and c. It is against this order of the trial court, the present appeal has been filed.

Various facts and pleas have been raised before the Court by the counsel for the appellant for explaining to the Court the reasons for not amending the prayer clause of the plaint and for non-payment of court fees accordingly.

In the facts of the case, we find that there is hardly any challenge to the findings recorded in the order impugned qua the reasons for requiring the plaintiff to amend the plaint and to pay the court fees accordingly vide order dated 4.12.2015. It is also not in dispute that even after successive opportunities no amendment in the relief clause of the plaint was made nor court fee was paid. We find there is no illegality in the order passed by the trial court rejecting the plaint under Order 7, Rule 11 of C.P.C.

We may only record that in view of Order 7, Rule 13 of C.P.C., a fresh suit can be instituted by the plaintiff with appropriate relief after payment of the requisite court fees.

Appeal is disposed of with the aforesaid observations.