The central legal point established is that the plaintiff should be given an opportunity to pay deficit stamp duty and penalty before rejection of the plaint.

JUDGMENT :

N.K. Sudhindrarao, J.

This appeal is directed against the Judgment and decree dated 13.08.2013 passed in R.A.No.85/2012 by the Presiding Officer, Fast Track Court at K.G.F wherein appeal filed by plaintiff came to be dismissed. Thus, order dated 20.7.2012 and 31.07.2012 passed by learned Civil Judge, Senior Division and Principal JMFC, K.G.F in O.S.No.87/2005 stood confirmed.

2. In order to avoid overlapping and confusion, the parties are referred with reference to their ranks held by them before the trial Court.

3. It is a plaintiff's second appeal against the Judgment of learned first appellate Judge. Basically plaint filed by the present appellant in O.S.No.87/2005 came to be rejected under Order VII Rule 11(c) of Civil Procedure Code.

4. Factual matrix of the matter is, plaintiff filed an original suit in O.S.No.87/2005 against defendants for the relief of specific performance of the agreement dated 31.01.2005, wherein the defendants entered into an agreement to sell the suit schedule property measuring 2 acres out of 4 acres of agricultural land in Sy.No.6/P17 of Kanvekallu Village, Kasaba Hobli, Bangarpet Taluk, Kolar District for a cash consideration of Rs.2,50,000/- and received an advance amount of Rs.2,16,000/- and agreed to execute the registered sale deed of the schedule property within three months i.e. on or before 01-04-2005.

5. Plaintiff claims that he was ready and willing to perform his part of contract and further alleges that the defendants committed breach of contract. The suit sale agreement is written on a non judicial stamp paper of R.200/-. The possession of the suit schedule property is stated to have been delivered under the said registered sale agreement.

6. Defendants appeared and opposed the claim of the plaintiff and denied the plaint averments.

7. The trial Judge, was accommodated with the oral and documentary evidence of PWs 1 to 4, DWs 1 to 4, and documentary evidence of Exs.P1 to P17 and Exs.D1 and D2.

8. During the first phase of proceedings, suit filed by the plaintiff for specific performance came to be decreed by the trial Court on 29.01.2010 and defendants were directed to execute the registered sale deed in the lines of the sale agreement dated 31.01.2005. However, appeal preferred by the defendants in R.A.No.49/2010 before the Presiding Officer, Fast Track Court, KGF came to be allowed on 16-10-2010 and in view of non payment of proper stamp duty of the suit document-sale agreement I.A. Nos. 1 and 2 filed by the defendants were allowed and matter came to be remanded to the trial court with certain directions.

9. After the remand from the first Appellate Court, the trial Court adjudicated the matter in a summary manner and the application filed by the plaintiff seeking permission to deposit the duty and penalty and the plaint came to be rejected by the trial Court in its order dated 31.07.2012 in O.S.No.87/2005. Against the said order, plaintiff preferred the appeal under order 41 Rule 1 CPC before the first Appellate Court in R.A.No.85/2012 which came to be dismissed on 13.08.2013 and consequently the orders passed by the learned Civil Judge (Sr.Dn) KGF in O.S.No.87/2005 dated 31.7.2012 came to be confirmed. Against which, plaintiff preferred this second appeal.

10. While admitting the appeal on 26.9.2013, this Court framed the following substantial question of law for consideration:

Whether non-payment of duty and penalty on a document would permit rejection of plaint by the trial court under order VII Rule 11 CPC?

The substantial question of law is reframed today as under:

(i) Whether the Trial Court and the First Appellate Court were legally justified in rejecting the plaintiff when the plaintiff in the subsequent circumstances was ready to pay the duty and penalty though he failed to pay the same in the beginning?

(ii) Whether the plaintiff is legally entitled for an opportunity