The appellant's failure to pay the proper court fee on the memorandum of appeal, despite the trial court's order to amend the plaint and pay the correct court fee, resulted in the rejection of the appeal.

1. This regular first appeal is directed against the judgment and decree of the Subordinate Judge First Class, Palwal, dated the 26th February, 1962, whereby the plaintiffs suit for partition of a joint house was dismissed but the parties were left to bear their own costs.

2. On behalf of the respondents a preliminary objection has been raised and it is contended on the basis thereof that the memorandum of appeal be refected. It is pointed out that in the trial Court one of the controversies raised was that the Court-fee had not been properly paid and on the basis of this objection in the written statement, the following two preliminary issues were framed :-

"(1) What is the market value of the property in suit ?

(2) What is the proper valuation of the plaint for Court-fee and jurisdiction ?"

The learned trial Court by order dated the 9th August, 1961, then fixed the valuation of the plaint for the purposes of Court-fee and jurisdiction at Rs. 7,035/- and directed the plaintiff to amend the plaint and make up the deficiency in the Court-fee by the time fixed in the order. In Obedience to this order the plaintiff amended the plaint and then paid ad valorem Court-fee on the market value of the property as fixed in the order.

3. On the memorandum of appeal the appellant, however, affixed a Court-fee of Rs. 19.50 on the assertion that the suit fell under Schedule II, Article 17, Clause 6, of the Court-fees Act and the memorandum of appeal was liable to be stamped with a Court-fee of Rs. 19.50 only. The office raised an objection by pointing out the decision of Issue No. 2 by the Trial Court. In spite of this objection, the Court-fee was not made good and the appeal was subsequently admitted to a regular hearing without this matter having been decided.

4. In view of the above facts, it is contended on behalf of the respondent that there being no proper memorandum of appeal before this Court the memorandum ought to be rejected. Mr. Puran Chand appearing for the appellant has urged the following points in this connection :-

"(i) that before the plaint was rejected time ought to be granted to the plaintiff-appellant to make good the deficiency as provided by Rule 11 of Order 7, Civil Procedure Code ?

(ii) that in any case opportunity to make good the Court-fee ought to be given under Section 149 of the Civil Procedure Code?

(iii) that it is open to the appellant to challenge the correctness of the decision of the trial Court on the preliminary issues and to show that the plaintiff was liable to pay Court-fee under Section 2, Article 17, Clause 6 of the Court Fees Act and that the memorandum of appeal was affixed with the correct amount of Court-fee."

5. So far as the first argument is concerned, the decision of this Court in M/s. Ajey Textile V/s. The British India Corporation, ILR 1970 (2) Punj and Har 127, is a complete answer to this contention. On a consideration of the entire case-law on this question it was held that the provisions of Order 7, Rule 11 do not apply to appeals and that the Appellate Court is entitled to reject an appeal if the Full Court-fee has not been paid without calling upon the appellant to pay the deficient Court-fee, because in so far as the memorandum of appeal is concerned, express provision has been made in Order 41, Rule 3, for its rejection on the grounds stated in that rule. It was further observed that the appellate Court was not bound to allow the appellant an opportunity to make up the deficiency in Court-fee after the expiry of the period of limitation for preferring the appeal. In view of these observations, I have no hesitation in rejecting the first contention as untenable.

6. Though no application under Section 149 of the Civil Procedure Code has been made, a prayer was made at the bar that the time for making good the deficiency be granted. Having regard, however, to the circumstances, I find that it is not a case where discretion should be exercised in favour of the appellant. The f