JUDGMENT
C.B. Bhargava, J.
1. This is an appeal from the judgment and decree dated 27th February, 1969, of the District Judge Jhunjhunu, whereby plaintiff’s suit has been dismissed for non-payment of additional, court fee. The learned District Judge was in error in making an order of dismissal of the suit. In fact, the plaint should have been rejected under Order 7, Rule 11, Civil P. C. On 29th
January, 1969, the Court passed an order that the plaintiff should pay ad valorem, court-fee on the sum of Rs. 4,16,620/25 P. for the first relief claimed in Para 33 of the plaint. It also directed the plaintiff to fix the valuation for the second relief and pay proper court-fee on it. For the third and fourth reliefs, the lower Court directed the plaintiff to pay ad valorem court-fee on Rs. 29,985/84 P. and Rupees 16,658/80 P. respectively. Time was allowed to the plaintiff to pay the deficit court-fee but he failed to do so and the plaint was, therefore, rejected on 27th February, 1969.
Plaintiff has appealed against the said decree and a preliminary objection has been raised on behalf of the respondents that the memorandum of appeal is insufficiently stamped. According to Article 1 of Schedule 1 of the Rajasthan Court-fees Act, ad valorem, court-fee has to be paid on the amount or value of the subject-matter in dispute. The appellant in the present case has paid a court-fee of Rs. 15 only. The contention of the respondents’ counsel is that the subject-matter in dispute so far as this appeal is concerned is the court-fee demanded in the lower Court and that amount, excluding the valuation which is now to be fixed by the appellant for relief No. 2, comes to Rs. 23,395/- on which court-fee ought to have been paid on the memorandum of appeal. The contention is well founded and is supported by the decisions of several High Courts.
2. In Apparao Sheshrao Deshmukh v. Mt. Bhagubai, AIR 1949 Nag 1 (FB), it was held :
“A memorandum of appeal filed against the rejection of a plaint under Order 7, Rule 11 (c). Civil P. C., should bear ad valorem court-fee on the difference between the court-fee paid and the court-fee demanded in the lower Court.
The subject-matter in dispute in so far as the appellant is concerned is the extra court-fee demanded of him bv the Court. The whole of the claim which he prefers in the Court below is never dismissed when the plaint is rejected. After the rejection of the plaint the unsuccessful plaintiff has two courses open to him. He can accept the decision of the trial Court and present a fresh plaint, or he can appeal against the order which amounts to a decree. In the second case the dispute involves only the demand for the extra court-fee and it is not right to sav that the dispute covers the entire controversy in the suit about which no decision has really taken place.”
Similar view was taken in Kalliappa v. Kandaswami, AIR 1938 Mad 498, Gorakh Sahu v. Sheo Nandan Singh, AIR 1939 Pat 571, Udav Chand v. Mohanlal, AIR 1957 Punj 315, Atma Singh v. Mohan Lal,
AIR 1959 Punj 387 and Tarlok Singh v. Daljit Kaur, AIR 1961 Punj 426.
3. With respect, I agree with the view taken in the aforesaid decisions and the appellant ought to have paid ad valorem court fee on the court-fee demanded in the lower Court. The appellant should, therefore, pay the deficit court-fee. The court-fee payable according to the order of the lower Court is Rs. 23395/- on the first and third and fourth reliefs of the plaint. In the lower Court, plaintiff paid a court-fee of Rs. 15 and. therefore, on the memorandum, of appeal he ought to have paid court-fee on the sum of Rs. 23380/- which comes to Rs. 1265/-. For the second relief, no valuation has yet been fixed. The appellant will fix the valuation for the second relief and pay proper court-fee on it as well.
4. On 12th November, 1970, an application was submitted on behalf of the appellant that he may be allowed to maintain this appeal as a pauper. This seems to have been done on realisation of the fact that ad valorem court-fee is required to be paid on the amount of court-fee demanded in the lower Court. However, this application is not within limitation. Under Article 130 of the Limitation Act of 1963, a period of sixty days is provided for leave to appeal as a pauper to the High Court from the date of decree appealed from. In this case, the decree was passed on 27th February. 1969, and the present application which has been preferred on 12-11-1970 is clearly barred by limitation. In Mt. Giani Bai v. Prem Chand, ILR (1955) 5 Raj 474, it was held by a Division Bench of this Court that:
“Where an appeal was filed and then, on the Court ordering the payment of court-fee on it the appellant made an application asking for permission to continue the appeal, which had already been filed, in forma pauperis, it was held that such an application was the same thing as an application for leave to appeal as a pauper and was governed by Article 170 and not by Article 181.”
This application is, therefore, rejected.
5. Learned counsel for the appellant wants time to pay the deficit court-fee. Two months’ time is allowed to the plaintiff to pay the deficit court-fee as ordered above. The case be put up after two months.
