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AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

Second Appeal

No.

60

of 201

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Kausilya Bai, daughter of Late Chamru Ram, aged 30 years,

Occupation-Service, Caste-Pathari, resident of Village Kumhari,

Tehsil Pendra Road, District Bilaspur (C.G.), presently at child

Development Extension Officer, Korba, District Korba (C.G.)

.....Plaintiff

---- Appellant

Versus

1. Jeevanlal, son of Dujram, aged 32 years, Occupation – Service,

Caste-Pradhan, resident of Village Kumhari, Tehsil Pendra Road,

District Bilaspur (CG), presently at Ledri, P.O. Jhagrakhand, Tehsil

Manendragarh, District Koriya (C.G.)

2. Bechan, son of Dujram, aged 25 years, Occupation -Agriculture,

Caste- Pradhan, resident of Village Kumhari, Tehsil Pendra Road,

District Bilaspur (C.G.)

3. Ravindra, son of Dujram, aged 20 years, Occupation-Agriculture,

Caste-Pradhan, resident of Village Kumhari, Tehsil Pendra Road,

District Bilaspur (C.G.)

4. Smt. Gomti, widow of Dujram, aged 55 years, Occupation-

Agriculture, Caste-Pradhan, resident of Village Kumhari, Tehsil

Pendra Road, District Bilaspur (C.G.)

5. State of Chhattisgarh, through the Collector, Bilaspur (C.G.)

---- Respondents

For Appellant

:

Mr. Malay Shrivastava, Advocate.

For respondents No. 1 to 4

:

None present.

For respondent No. 5

:

Ms. K. Tripti Rao, Panel Lawyer

Hon'ble Shri Justice Sanjay K. Agrawal

Order On Board

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8 /201

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(1)

The substantial question of law formulated and to be answered by

this Court in the plaintiff's second appeal is as under:-

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“Whether the two courts below were justified in rejecting the suit

and the first appeal without giving the plaintiff sufficient time for

fixing the requisite Court fee ?”

[For sake of convenience, the parties would be referred hereinafter

as per their status shown in the plaint before the trial Court]

(2)

The facts necessary for answering the substantial question of law

are as under:-

(2.1) The plaintiff filed suit for declaratoin of title, permanent injunction

and possession being Civil Suit No. 123-A/2002. The said Civil Suit was

decreed by the trial Cout by its judgment & decree dated 22.02.2007.

(2.2) Feeling aggreived & dissatisfied with the judgment & decree of the

trial Court, defendants preferred first appeal before the first appellate

Court on 04.04.2007.

(2.3) The First Appellate Court by its judgment & decree dated

26.02.2008, allowed the appeal in part and remanded the suit to the trial

Court to decide issue No. 3 with regard to valuation of the suit and

payment of court fee afresh in accordance with law.

(2.4) The trial Court, by its order dated 05.08.2010, decided the issue

against the plaintiff and in favour of defendants holding that the plaintiff

has not valued the suit properly and has also not paid proper court fee

and thereby dismissed the suit.

(2.5) The plaintiff preferred first appeal against the order of the trial

Court. The First appellate Court, by its impugned judgment and decree

dated 30.04.2011, affirmed the findings of the trial Court and dismissed

the appeal.

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(2.6) Impugning the legal acceptability and sustainability of the judgment

dated 30.04.2011 passed by the First Appellate Court, the second appeal

under Section 100 of the CPC has been preferred by the plaintiff

(appellant herein), which has been admitted for final hearing on the

substantial question of law framed and incorporated in opening

paragraph of this judgment.

(3)

Mr. Malay Shrivastava, learned counsel appearing for the appellant

would submit that trial Court as well as first appellate Court both have

committed legal error in not granting time to the plaintiff for fixing the

requisite court fees in view of provisions contained in Order 7 Rule 11(b)

of the Code of Civil Procedure (hereinafter called as “CPC”) and, as

such, the impugned order deserves to be set aside.

(4)

No-one has appeard