JUDGMENT

Sanjay K. Agrawal, J. - The substantial question of law involved, formulated and to be answered in the second appeal preferred by plaintiffs/ appellants is as under:-

"Whether the Courts below were justified in dismissing the suit on the ground of non-payment of Court fee within the time stipulated by the learned appellate Court in its remand dated 09.10.2001?

(For the sake of convenience, parties would be referred hereinafter as per their status shown in the suit before the trial Court).

2. The plaintiffs' suit for declaration of title and permanent injunction was dismissed by the trial Court on 19.09.1983. Feeling aggrieved against the judgment and decree passed by the trial Court, the original plaintiff preferred first appeal under Section 96 of the Code of Civil Procedure (in short 'the CPC') which was allowed by the first appellate Court on 09.10.2001 and remanded the matter to the trial Court to make valuation of suit land within one month and pay proper Court fee before the trial Court.

3. The plaintiff preferred an application under Section 149 of the CPC for extension of time to pay the court fee which was rejected by the trial Court on 15.05.2003 and the suit was dismissed. The appeal preferred by the plaintiffs was also dismissed by the impugned judgment and decree. Questioning the same, this second appeal by the plaintiffs has been preferred under Section 100 of the CPC in which substantial question of law has already been framed which has been set out in the opening paragraph of this judgment.

4. Mr. P.K.C. Tiwari, learned Senior Counsel for the appellants/ plaintiffs, would submit that both the Courts below were absolutely unjustified in rejecting the application under Section 149 of CPC and failed to consider the dispute in proper perspective, as after remand, the legal representatives of the plaintiffs and the defendants were substituted and notices were served and in the meantime, valuation was made and court fee was sought to be paid by filing an application on 22.03.2002, which was not considered in proper perspective by learned trial Court and the application was rejected and consequently, the suit was dismissed. The first appellate Court also did not notice the illegality committed by the trial Court in the judgment and decree, as such, the judgment and decree passed by two Courts below deserve to be set-aside.

5. Mr. Manoj Paranjpe & Mr. Anurag Singh, learned counsel for the defendants, would support the impugned judgment and decree.

6. I have heard learned counsel for the parties, considered their rival submissions made hereinabove and went through the records with utmost circumspection.

7. The plaintiffs' suit was originally dismissed by the trial Court. In first appeal preferred by the plaintiff herein, the first appellate Court while setting aside the judgment and decree of the trial Court remanded the matter to the trial Court permitting the plaintiffs to correct valuation of civil suit and to pay proper and requisite court fee. When the matter was taken up before the trial Court on remand on 29.10.2001, the trial Court noticed that the original plaintiffs and the original defendant both have died and, therefore, the trial Court directed the parties to do the needful for bringing their legal representatives on record and further directed that for complying the order of the first appellate Court, the date will be fixed later on. Ultimately, the legal representatives were brought on record on 18.12.2001 and thereafter they were noticed also. On 23.03.2002 the plaintiffs filed an application in compliance of the order of the first appellate Court and sought permission to pay the court fee of Rs. 2200/-, which the trial Court rejected holding that there is gross negligence on the part of the plaintiff in complying the order of the first appellate Court on remand, which the first appellate Court accepted in appeal. Ignoring the fact that after remand, the trial Court noticed that the original pl