Hon’ble Manoj Misra, J.—This is plaintiffs’ petition against an order dated 20.11.2013 by which plaintiffs’ application 441 Ga, seeking disposal of application 389 Ka to amend the plaint of Original Suit (in short O.S.) No. 319 of 1982 for deleting property No. 2 from schedule A of the plaint, has been rejected on the ground that, earlier, by order dated 5.7.2011, while deciding issue No. 2, the plaintiff was required to make good the deficiency in Court-fee therefore, any further action in the suit, unless the deficient Court fee is deposited, would not be permissible in view of sub-sections (2) and (3) of Section 6 of the Court Fees Act, 1870, as applicable in the State of Uttar Pradesh (in short Act, 1870). By the impugned order the trial Court also fixed an outer time limit for making good the deficiency in Court fee or else face rejection of the plaint under Order 7 Rule 11(c) of the Code of Civil Procedure (in short the Code).

2. Briefly stated the facts giving rise to this petition are that in O.S. No. 319 of 1982, which was instituted by the petitioners, issue No. 2 was framed as to whether the Court fees paid by the plaintiffs was insufficient. The trial Court vide order dated 5.7.2011 held that the Court fee would be payable as per Section 7(iv)(a) of the Act, 1870 and accordingly required the plaintiffs to pay deficient Court fee within 7 days. The petitioners challenged the order dated 5.7.2011 before this Court by filing FAFO No. 2524 of 2011, under Section 6-A of the Act, 1870.

3. It is the case of the petitioners that during pendency of FAFO No. 2524 of 2011 some compromise took place in respect of property mentioned at serial No. 2 in Schedule A of the plaint therefore, on 15.10.2012, they filed application 389-Ka to delete property entered at serial No. 2 from the said Schedule. And since they decided to pay deficient Court fee on the remaining property, FAFO No. 2524 of 2011 was withdrawn. Thereafter, upon withdrawal of FAFO No. 2524 of 2011, they moved an application (391 Ga) before the Court below to consider the amendment application 389-Ka.

4. It appears, on 12.11.2013, instead of passing an order on the amendment application, the Court directed the petitioners to make good the deficiency in Court fees as directed by order dated 5.7.2011. As a result, the petitioners filed an application 441 Ga with prayer that before the plaintiffs are required to deposit the balance Court fees, the amendment application 389-Ka be considered and till its disposal the operation of the order dated 12.11.2013 be suspended. It is this application which has been rejected by the impugned order by placing reliance on Section 6 (2) and (3) of the Act, 1870. Not only that it has been provided that the plaintiffs must first make good the deficiency in Court fee and only thereafter amendment application 389-Ka would be considered.

5. The case of the petitioners is that though the trial Court had determined issue No. 2 against the petitioners and had required them to make good the deficiency in Court fee but since, by amendment application 389-Ka, dated 15.10.2012, the petitioners had sought deletion of property entered at serial No. 2 from the Schedule of the plaint, which would reduce valuation of the suit as well as Court fee payable therein, there was no legal justification not to consider the amendment application first and redetermine the Court fee payable on the amended plaint.

6. Sri Arun Kumar Singh-I, who appeared for the petitioners, submitted that the plaintiffs have unfettered right under Order 23 Rule 1 of the Code to abandon any part of their claim and can also seek amendment in the plaint to reduce suit’s valuation, therefore consideration of such application cannot be withheld on account of the provisions of sub-sections (2) and (3) of Section 6 of the Act, 1870. In support of his submission that amendment can be made to alter and reduce valuation of the suit or appeal, reliance has been placed on the follow