The duty of the Civil Court and first appellate Court to decide the amount of Court-fees payable and the power of the first appellate Court to adjudicate the issue of Court-fees in the appeal.

Vivek Rusia, J.

1. The petitioners have filed the present petition being aggrieved by order dated 9.10.2018 passed by learned first appellate Court whereby application filed under Order 7 Rule 11 read with Section 107 of C.P.C. has been allowed by directing the petitioner/plaintiff to pay the ad valorem Court fees.

2. Facts of the case, in short, are as under:

(i) The present petitioners being the plaintiffs filed the suit for declaration and permanent injunction in respect of land bearing Survey No.805/3 area 0.55 Hect. and Survey No.806/3 ara 0.38 Hect. of Village Dablahurd, Tehsil Tarana, District Ujjain (hereinafter, for short, "the suit land"). The suit land was initially owned by father of the plaintiffs viz. Late Shri Badrilal, who in his life time sold it vide registered sale-deed dated 22.7.2009. After the death of Badrilal, plaintiffs filed the suit challenging the aforesaid sale-deed executed in favour of respondent No.1/defendant No.1 and also sought the relief of permanent injunction.

(ii) On the basis of pleadings, learned trial Court initially framed five issues for adjudication.

(iii) Respondent No.1/defendant No.1 filed an application under Order 7 rule 11 of C.P.C. seeking rejection of the plaint on the ground that the plaintiffs did not properly value the suit and did not pay the ad valorem Court-fees on the basis of value of suit land in the sale-deed. Said application was allowed by the trial Court vide order dated 27.9.2014, against which, plaintiff filed W.P. No.8104/2014 before this Court. This Court vide order dated 1.3.2016 allowed the said writ petition and the matter was remitted back to the trial Court to decide the issue of Court-fees along with other issues at the time of final hearing of the suit on merit.

(iv) On the basis of aforesaid order of this Court, learned trial Court has framed additional issue No.6 in respect of valuation of suit and payment of Court-fees, which is reproduced as below:-

Øekad okn Á'u fu"d"kZ

6- D;k oknh }kjk okn dk mfpr ewY;kadu dj i;kZIr U;k; 'kqYd vnk fd;k x;k gSA dafMdk 28 ds vuqlkj fu"d"kZ fn;k x;kA

(v) Vide judgment and decree dated 5.10.2016, learned trial Court has dismissed the suit on merit and also held that the plaintiff is liable to value the suit at Rs. 6,44,520/- and to pay the Court-fees @ 12%. The decree drawn by the learned trial Court is reproduced below:-

^^oknhx.k dks oknxzLr Hkwfe ds laca/k esa ,d yk[k :i;s vo'ks"k foØ; ewY; ÁkIr ugha gqvk gSA ;g Áekf.kr djus esa oknhx.k vlQy jgs gSA ,slh fLFkfr esa foØ; ys[k 1v@422 fnukafdr 22-07-2009 oknhx.k ij ca/kudkjh gSA Áfroknh Øekad 1 oknxzLr Hkwfe ls oknhx.k dks csn[ky djus fy;s Á;kljr ugha gSA oknhx.k ds }kjk okn dk ewY;kadu rks mfpr fd;k x;k gS ijUrq U;k; 'kqYd mfpr :i ls vnk ugha fd;k x;k gSA oknhx.k okn ewY;kadu vuqlkj vFkkZr 6]45]520@& :i;s ij 12-00 Áfr'kr dh nj ls U;k; 'kqYd nsus ds fy;s nk;h gSA vr% mDr jkf'k oknhx.k rRdky vnk djsa vU;Fkk mDr jkf'k oknhx.k ls fofo/k nhokuh Ádj.k dk;e dj olwy dh tkosaA rn~uqlkj oknhx.k vius nkos dks Áekf.kr djus esa vlQy jgs gSA vr% oknhx.k ds }kjk ÁLrqr okn fujLr fd;k tkrk gSA**

(vi) Being aggrieved by the aforesaid judgment and decree, plaintiffs have filed first appeal u/s. 96 of the C.P.C. In the pending appeal, defendant No.1 filed an application under Order 7 Rule 11 read with Section 107 of C.P.C. alleging that the plaintiff/appellant has neither paid the court-fees in the suit nor in the first appeal despite judgment and decree of the learned trial Court, hence the appeal is liable to be dismissed.

(vii) Learned first appellate Court vide order dated 9.10.2018 has allowed the application directing the plaintiff to pay the Court-fees as directed by the learned trial Court and also to value the first appeal and to pay the ad valorem Court-fees.

3. Being aggrieved by the aforesaid order, the plaintiff has preferred the present petition before this Court.

4. Vide order dated 25.01.2019, this Court has issued the notice to the respondents on the following question of