Rejection of the plaint under Rule 11 was proper due to non-payment of court-fees on an alternative prayer; an appeal cannot exist if the suit itself has been rejected.

1. This appeal by the plaintiffs in the suit is directed against the order dated 5th April, 1983, passed by the learned Civil Judge, Senior Division, Mapusa, whereby he rejected the plaint under O.7, R.11(b) read with (c), C.P.C.

2. The appellants have filed a suit for the following reliefs :
(a) That it be declared that the plaintiffs are the exclusive owners of the property A, B and C together with the suit house thereon;
(b) the plaintiffs may be restored back to the southern portion of the suit house and the defendants be evicted therefrom;
(c) permanent injunction restraining the defendants from causing any obstructions to the plaintiffs or their tenants in exercise of the lawful possession, use and occupation of the property A, B and C and of the suit house;
(d) alternatively the plaintiffs be restored back to the rustic part with the trees of the property A, B and C;
(e) properties A, B and C on one side and D on the other according to the measurements be demarcated so that the extent of property D is clearly defined and the boundary between the property D and B is defined;
(f) demarcation be passed that the plaintiffs and defendants are co - owners of the property; and
(g) property D be divided by metes and bounds in proportion of the shares of the plaintiffs and defendants.

3. The suit was resisted by the respondents and inter alia they raised the question that the suit was undervalued for the purposes of court - fee. By his order dated 19th Nov. 1974, the learned Civil Judge, Senior Division, Mapusa, directed the plaintiffs to amend the plaint stating the value of the subject - matter as being Rs. 35,668/- and to pay the difference of court - fee as per the observations made in his order. A revision application was filed by the present appellants against the said order in the Court of the Judicial Commissioner of Goa, Daman and Diu. At the hearing of the said revision application, the learned counsel appearing for the respondents herein pointed out that the relief claimed under Cl.(d) is an alternative relief in relation to the relief of permanent injunction prayed for under Cl.(c) and, therefore, the court - fee has to be paid on the larger value of the two reliefs. The learned Judicial Commissioner agreed with this submission of the learned counsel appearing for the respondents and, accordingly, set aside the order dated 19th Nov. 1974, passed by the learned Civil - Judge, Senior Division, Mapusa, and remanded the matter to the trial Court to be decided in accordance with the directions given by him. After the matter was received in the trial Court, it appears that the learned Advocate appearing for both the parties had agreed on 29th July, 1982, that prayer (d) should be valued at Rs. 3,400/- and that the plaintiffs should pay the court - fee on it. They further admitted that prayer (d) was an alternative prayer and therefore the plaintiffs were directed to pay the difference of court - fee on the said amount of Rs. 3,400/- within two months from 29th July, 1982.

4. The suit came up for evidence on 16th Nov., 1982 and was adjourned to 5th April, 1983. It was found that in spite of the order dated 29th July, 1982, the appellants / plaintiffs had not paid the deficit court - fee within the period of two months nor they sought extension for the said payment in accordance with the provisions of O.7, R.11 or under S.148, C.P.C. Therefore, the learned Judge by the impugned order dated 5th April, 1983, rejected the plaint under O.7, R.11, Cls.(b) and (c) read together.

5. Mr. M.S. Usgaonkar, the learned counsel appearing for the appellants, submitted that the questions that fall for the determination of this Court are two, viz., (i) whether the suit could be rejected on ac