Judgment On Board

Sanjay K. Agrawal, J.

1. Invoking appellate jurisdiction of this Court under Section 96 of the Code of Civil Procedure, the appellant/plaintiff has preferred this appeal questioning the illegality, validity and correctness of the impugned order dated 04/11/2024 (Annexure A/1) passed by learned 3rd District Judge, Durg in Civil Suit No. 17-A/2019 whereby the suit filed by the appellant/plaintiff has been rejected invoking Order 7 Rule 11 (c) of CPC.

(For the sake of convenience, parties would be hereinafter referred as per their status and ranking shown in the suit before the trial Court.)

2. The aforesaid challenge has been made on the following factual backdrop :-

(i) Original plaintiff namely Bhagwat Shukla filed a suit for declaration of gift deeds dated 16/07/2018 as null and void and for permanent injunction.

(ii) During the pendency of the suit, defendants No. 1 and 2 filed application under Order 7 Rule 11 of CPC stating that the plaintiff has paid less court fee for getÝng the relief of cancellation of the said gift deeds, therefore, his plaint is liable to be rejected.

(iii) The trial Court, by its order dated 07/02/2024, held that as per Order 7 Rule 11(c) of CPC, the plaint is not sufÏciently stamped and proper court fee has not been paid by the plaintiff and thereby, proceeded to grant one month’s time to the plaintiff to pay requisite court fee.

(iv) On 24/04/2024, present plaintiff – Siddharth Kumar Shukla moved an application under Section 149 of CPC stating that after the death of original plaintiff – Bhagwat Shukla, he, being the grandson of the original plaintiff, has been substituted and since the entire court fee of Rs. 3,04,000/- is excessive, therefore, he may be allowed to deposit 50% court fee i.e. Rs. 1,52,000/- at present and may be granted time to deposit the remaining court fee till the adjudication of the suit. However, though the trial Court rejected the said application filed by the plaintiff under Section 149 of CPC but granted 15 days time to the plaintiff to pay the entire amount of court fee. The matter was fixed for 22/10/2024 but further time was sought by the plaintiff.

(v) Ultimately, vide order dated 04/11/2024, the trial Court proceeded to reject the plaint filed by the plaintiff invoking Order 7 Rule 11(c) of CPC stating that plaintiff has failed to pay the requisite court fee despite having been given sufÏcient time, being aggrieved by which, the plaintiff has preferred this first appeal.

3. Mr. Praveen Dhurandhar, learned counsel for the appellant/plaintiff, would submit that the trial Court ought to have taken a pragmatic view of the matter considering that original plaintiff and defendants No. 1 and 2 were father and daughters in relation and further in view of the fact that plaintiff was ready and willing to pay 50% of the court fee i.e. Rs. 1,52,000/- which shows that there was no mala fide intention or a deliberate effort on the part of the plaintiff to not pay requisite court fee. Moreover, the provision under Order 7 Rule 11 of CPC also implies that the Court has power to extend the time granted to pay proper court fees if it is satisfied that the default was not intentional or deliberate, as such, the impugned order is liable to be set aside. He would rely upon the decision rendered by the Supreme Court in the matter of Raju Thomas and Others v. Devu and Others¹(2019) 14 SCC 611 to bu submission.

4. Per contra, Mr. T.K. Jha, learned counsel for respondents No. 1 and 2, would support the impugned order and submit that the trial Court has rightly rejected the plaint of the plaintiff by invoking Order 7 Rule 11(c) of CPC as sufÏcient time was granted to the plaintiff and the matter was adjourned thrice, yet the plaintiff failed to pay the requisite court fee, as such, the instant appeal is liable to be dismissed.

5. We have heard learned counsel for the parties, considered their rival submissions made herein-above and went