1993 Supreme(MP) 80

R.C. Lahoti, J.
Siddhu v. Kunwar Shakti Singh
S.A. No. 282 of 1979 (I); Decided on 22.1.1993.

Headnote:(1) Civil P.C., 1908 -- S. 149 -- plaint with deficient court-fees -- Court should give an opportunity to pay requisite court-fees and correct the valuation.

        (2) Civil P.C., 1908 -- O. 1 R. 10 -- necessary party not impleaded -- opportunity to implead the same should be afforded.

        (3) Transfer of Property Act, 1882 -- S. 53A -- no written agreement to sell -- provision not attracted.

        ¼1½ flfoy Áfdz;k lafgrk] 1908 & /kkjk 149 & de U;k;ky; Qhl ds lkFk okni= & visf{kr U;k;ky; Qhl lanRr fd, tkus rFkk ewY;kadu lgh fd, tkus ds fy, U;k;ky; }kjk volj fn;k tkuk pkfg,A

        ¼2½ flfoy Áfdz;k lafgrk] 1908 & vk- 1 fu- 10 & vko‘;d i{kdkj dks i{kdkj ugha cuk;k x;k & mls i{kdkj cukus ds fy, volj fn;k tkuk pkfg,A

        ¼3½ laifRr varj.k vf/kfu;e] 1882 & /kkjk 53d & fyf[kr esa fodz; dk dksbZ djkj ugha & mica/k vkdf"kZr ugha gksrkA

        Plaintiff/appellants have come up in second appeal feeling aggrieved by the judgments and decrees of the Courts below directing their suit for declaration of title and issuance of permanent preventive injunction to be dismissed for non-payment of Court fees and for not joining the State of M.P. as party to the suit, though it was a necessary party.

        Held : The suit property is an agricultural holding assessed to land revenue of Rs. 96.19 p. Suit of the nature filed by the plaintiffs should have been valued at twenty times the land revenue and Court fees paid thereon. The valuation should have been Rs. 1923.80 p. and Court fees paid thereon accordingly. The trial Court did not err in holding that the plaint was insufficiently stamped.

        However, after forming an opinion as abovesaid, the trial Court should not have proceeded straight way to dismiss the suit. The plaintiff must be given an opportunity to correct the valuation and to supply the deficit stamps within a time to be appointed by the Court without doing so, the plaintiffs cannot be penalized by dismissing the suit. If only the plaintiffs fail to avail the opportunity, the plaint should be liable to be rejected (see: Baijnath Prasad v. Umeshwar Singh (SB) AIR 1937 Patna 550 and Apparao v. Bhagubai, AIR 1949 Nag. 263).

        The trial Court also formed an opinion that the State of M.P. should have been joined as a party to the suit and the suit suffered from the defect of non-joinder of necessary party. This could also not form basis for dismissing the suit. Having formed an opinion that the suit suffered from the defect of non-joinder of a party, the plaintiff should have been allowed an opportunity of impleading such party.

        However, it may be placed on record that it has been pointed out to the learned counsel for the plaintiff appellants that the plaint does not disclose a cause of action prima facie. The plaintiffs have sued on the basis of an oral sale. That would not vest title in the plaintiffs. From the date of sale pleaded in the plaint, the plaintiffs would not acquire any title even by adverse possession and that is also not the case pleaded. Benefit of section 53-A of the Transfer of Property Act is not available to the plaintiffs as there is no document in writing. The plaintiffs have not sued for specific performance. In short, taking the plaint allegations at their face value, the plaintiffs would not be entitled to any relief. This Court could have chosen to reject the plaint on that ground also but has refrained from doing so because the matter is being heard in appeal, the plaintiff/appellants are not personally present before the Court and rejection of the plaint for the first time by this Court at this stage may probably prejudice the plaintiffs. That question is, therefore, left to be examined by the trial Court. AIR 1937 Pat. 550 and AIR 1949 Nag. 263 relied on. Appeal allowed.