Honble YADAV, J.–The plaintiff-appellant filed a suit for rendition of accounts and dissolution of partnership on 26.5.73. It was alleged that the plaintiff had 7 annas share and the defendants No.3 and 4 had 4.5 annas share each in the profits of the firm. It was averred that the defendants concealed the income of the partnership and the plaintiffs share hence he prayed for dissolution of partnership and rendition of accounts.

(2). The defendants filed their written statement on the ground inter alia that the partnership was dissolved on 27.3.69 and a sum of Rs. 62,000/- was found due against the plaintiff. Other allegations were also averred in the written statement to the effect that accounts were maintained, the statements and returns were pre- pared by the plaintiff himself. The defendants also raised a plea that suit has not been properly valued and the court fees is insufficiently paid.

(3). The defendants did not comply with the direction of the court for inspection of the account books by the plaintiff, therefore, their defence was struck off. Thereafter the suit proceeded ex parte against the defendants and the plaintiff led his ex-parte evidence. Thereafter on 9.1.75 the Addl. District Judge, Sri Ganganagar, passed the following order :-

``A perusal of the plaint shows that the suit has not been valued strictly in accordance with Sec. 34 Raj. Court Fees Act. The plaintiff is, there- fore, directed to value the suit in proper manner get it amended for that purpose and deposit the court fees on the basis of the estimated value of the plaintiffs share in the firm assets. The plaintiff shall do this within 20 days. Put up on 3.2.75 Pronounced.

(4). It is apparent from perusal of the record that the plaintiff appellant instead of complying with the order dated 9.1.75 within the time granted by the court he moved a review petition against the aforesaid order which was rejected on the ground that as the plaintiff failed to comply with the order dated 9.1.75 within the time allowed by the court, therefore, the plaint is liable to be rejected under Sec. 11(2) of the Rajasthan Court Fees and Suit Valuation Act, 1961 (hereinafter referred to as `The Act). It is true that the learned trial court did not notice the mandatory provisions contemplated under O.7 R. 11 CPC under which a plaint can be rejected if deficiency of court fees is not made good within the time allowed by the court. It is further true that once the plaint is rejected under O.7 R. 11 CPC a decree is drawn which is appealable. Here in the present case it apears that as the plaint was not rejected under O.7, R.11 CPC but it was rejected under Sec. 11(2) of the Act therefore decree was not drawn.

(5). Be that as it may, from the order passed by learned trial court on 15.7.76, rejecting the plaint under Sec. 11(2) of the Act it is borne out that plaintiff appellant specifically alleged in his plaint that a sum of Rs. 93,000/- comes to his share in the assets of the firm subject to some fluctuations because of loss shown in the firm but in Paragraph 8 of the plaint he averred that his share in the firms property may be more than 1 Lakh.

(6). I have heard the learned counsel for the parties. Perused the order dated 9.1.75 and also the order dated 15.7.76 passed by learned trial court.

(7). It is urged by the learned counsel for appellant that since it was a suit for accounts therefore instead of pressing into service sub-sec. (2) of Sec. 11 of the Act, the court ought to have pressed into service, the mandatory provisions contemplated under sub-sec. (2) of Sec. 33 of the Act which clearly provides that where the amount payable to the plaintiff as ascertained in the suit is in excess of the amo- unt as estimated in the plaint no decree directing payment of the amount as so ascertained shall be passed until the difference between the fee actually paid and the fee that would have been payable, had the suit comprised the whole of the amount so ascertained, is paid. Learned cou

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