IMPORTANT POINT
Power of appellate court is co-extensive with that of trial court.

JUDGMENT

R.M.LODHA, CJI.

1. Leave granted.

2. The appellants are plaintiffs in the suit for declaration and injunction. It is not in dispute that adequate court fee in that regard was paid by the plaintiffs. Lateron, reliefs were amended and prayers for compensation and utilization were also made. However, on the amended valuation, there was deficiency in payment of court-fee but to make up such deficiency, no order was passed by the trial court.

3. The present respondent Nos. 1 & 2 (defendants in the suit) preferred first appeal which was heard by the Additional District Judge, Dehradun. In the first appeal, an objection regarding deficit court-fee was raised by the defendants. The first appellate court, however, observed that while granting amendment in the plaint, the trial court did not prescribe any time limit in connection with the payment of court-fee and even no objection was raised by the defendants in that regard. The aspect of deficit court-fee came to the knowledge of the plaintiffs at the time of preparation of decree only and, therefore, an opportunity deserved to be granted to the plaintiffs to make up the deficit court-fee in the interest of justice.

4. Against this order of the first appellate court, respondent Nos. 1 and 2 filed a writ petition under Article 227 of the Constitution of India. The High Court in paragraph 7 of the impugned order held as under:

In the case in hand, after amendment in the valuation clause of the plaint, it was duty of the plaintiffs to make good the deficiency in the court fee. Deficiency of the court fee could be made good in the trial court only. Perusal of sub-section (2) of Section 6 of the Court Fees Act transpires that no plaint shall be acted upon, unless deficiencies in the court fee are made good. Court Fees Act further provides that in no case, the judgment shall be delivered unless the deficiency in court fee has been made good. Section 149 of C.P.C. though gives powers to the Court to allow the plaintiff to pay the deficit court fee but such power is given to the Court before the disposal of suit. Thus, permission for payment of additional court fee or for making good the deficiency in Court fee could only be granted during the pendency of suit. In absence of payment of sufficient court fee the judgment could not be delivered. Deficiency of court fee in respect of plaint cannot be made good during the appellate stage. Such permission could not be granted by the appellate court under Section 151 C.P.C.. In case such permission is permitted to the parties, then it would not only be per-se illegal but would also be a bad precedent since all litigants would adopt this method of paying court fee only after obtaining relief from the trial court, before the Appellate Court. I have no hesitation to say that decision making process of Additional District Judge/FTC II, Dehradun in per-se vitiated and cannot be appreciated. He has exercised his jurisdiction with material irregularity and order passed by him deserves to be set-aside.

5. It is this order which is challenged in the present appeal, by special leave. The High Court has heavily relied upon the provisions contained in sub-sections (2) & (3) of Section 6 of the Court-fees Act, 1870 (as applicable in U.P.) (for short "1870 Act") which provide that no plaint shall be acted upon unless deficiency in court-fee is made good and further provision contained in sub-section (3) of Section 6 that in no case the judgment shall be delivered unless the deficiency in court-fee has been made good. The High Court was also of the view that deficiency in court- fee in respect of plaint cannot be made good during the appellate stage and such permission could not be granted by the appellate court under Section 149 or Section 151 of the Civil Procedure Code.

6. We have heard Mr. Shyam Divan, learned senior counsel for the appellants and Mr. Jayant Bhushan, learned senior counsel for the respondent Nos. 1 and 2 at quite some length.

7. In our view, t