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CALCUTTA HIGH COURT
Sm. Annapurna Dassi & Ors. - Appellant
Versus
Sarat Chandra Bhattacharjee & Ors. - Respondent
Decided On : 14-05-1934
Court Fees - Dismissal of Suit - Appeal - Second Appeal
Fact of the Case:
The District Judge ordered the suit to be valued at the valuation of the decree itself and allowed time for payment of deficit court-fee. The petitioners failed to comply, and the appeal was dismissed with costs. The petitioners were also directed to pay additional court fees for the appeal to the Government.
Finding of the Court:
The court found that a second appeal lies against the order of dismissal of the first appeal, making the application in revision not maintainable.
Issues: The preliminary point taken was whether a second appeal lies against the order of the District Judge and if the application in revision is maintainable.
Ratio Decidendi: The court held that in the present case, the original suit was dismissed because proper court-fee had not been paid within the time allowed, amounting to rejection of the plaint under C. 7, Rule 11, Clauses (b) and (c), and thus an appeal and a second appeal were applicable.
Final Decision: The rule was discharged as the court found that an appeal lies against the order of dismissal of the first appeal.
ORDER
1. This rule was issued calling upon the opposite parties to show cause why two orders of the District Judge of Hooghly dated 7th June 1933 and 11th July 1933 should not be set aside. The order of 7th June was that the suit must be valued at the valuation of the decree itself and in that view the learned District Judge allowed the petitioners time for six weeks in which to pay the deficit court-fee on the valuation of Rs. 13,000 and he further directed that if the petitioners complied with this order they would be permitted to proceed with the suit, otherwise the appeal would stand dismissed with costs. The petitioners failed to comply with this order and then the learned District Judge on 11th July 1933 dismissed the petitioners' appeal with costs and he added that the petitioners were liable to pay Rs. 242-8-0 as additional court fees for the appeal to the Government.
2. A preliminary point has been taken in opposing this rule, namely, that a second appeal lies against the order of the learned District Judge and that therefore this application in revision is not maintainable. This appears to be correct. A contrary ruling has been referred to by the petitioners, namely, the case of Jnanada Sundari v. Madhab Chandra 1932 Cal 482. That case is distinguishable inasmuch as that was not a case of dismissal because the balance of court-fee which was due on the plaint was not deposited within the time allowed by the Court. In the present case the original suit was dismissed because proper court-fee had not been paid within the time allowed. This amounts to rejection of the plaint under C. 7, Rule 11, Clauses (b) and (c). From that order there is an appeal and a second appeal. In this case therefore an appeal lies against the order of dismissal of the first appeal. We understand that the petitioners have presented an appeal. The rule is accordingly discharged.
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