SARDAR TAJENDER SINGH GHAMBHIR AND ANOTHER versus SARDAR GURPREET SINGH & OTHERS

Citation: [2014] 10 S.C.R. 527 · Decided: 12-09-2014 · Supreme Court of India · Bench: RAJENDRA MAL LODHA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

[2014) 10 S.C.R. 527 
SARDAR TAJENDER SINGH GHAMBHIR AND ANOTHER 
v. 
SARDAR GURPREET SINGH & OTHERS 
(Civil Appeal No. 8660 of 2014) 
SEPTEMBER 12, 2014 
[R.M. LODHA, CJI, KURIAN JOSEPH AND 
R.F. NARIMAN, JJ.] 
COURT FEES ACT, 1870: 
s. 6(2) and s. 6(3), proviso - Payment of court fee at 
appellate stage - Plaint amended adding to valuation of suit 
- No orders made by trial court to make up the deficit court 
A 
B 
c 
fee - Objection raised by defendants in first appeal - Time 
must be granted by court for payment of court fee - In 
0 
absence of such specific order, sub-ss. (2) and (3) would not 
come into operation - An appeal is continuation of suit and 
power of appellate court is co-extensive with that of trial court. 
s. 12(ii) - Decision as to valuation of suit - The provision 
empowers appellate court to direct a party to make up deficit 
E 
court fee in plaint at appellate stage. 
The instant appeal arose out of the order of the High 
Court by which it set aside the order of the first appellate 
court allowing the plaintiff to make up the deficit court fee. 
F 
Allowing the appeal, the Court 
HELD: 1.1. In viaw of the provisions of sub-ss. (2) and 
(3) of s.6 of the Court Fees Act, 1870 for payment of court-
fee, time must be granted by the court and if despite the 
G 
order of the court, the deficient court-fee is not paid, then 
the consequence as provided therein must follow. The 
expression 'plaint' referred to in sub-ss.(2) and (3) of s.6 
527 
H 
528 
SUPREME COURT REPORTS 
[2014] 10 S.C.R. 
A may, in the context, be read to include 'memorandum of · 
appeal' as well. [para 8-9] [533-C; 534-B] 
1.2. In the instant case, the first appellate court in its 
order rightly observed that after amendment of plaint and 
8 consequent amendment in valuation, the trial court did 
not pass any order specifying time for payment of the . 
deficient court-fee. Obviously, in the absence of such 
specific order, sub-ss. (2) and (3) of s.6of1870 Act would 
not come into operation against the plaintiff. [para 1 O] 
[534-C-D] 
c 
1.3. The High Court also erred in holding that 
deficiency in court-fee in respect of plaint cannot be made 
good during the appellate stage. An appeal is the 
continuation of suit and the power of the appellate court 
D is co-extensive with that of the trial court. What could be 
done by the trial court in the proceeding of the suit, can 
always be done by the appellate court in the interest of 
justice. [para 12] [534-F-G] 
1.4. Clause (ii) of s.12 of 1870 Act clearly empowers 
E the appellate court to direct a party to make up deficit 
court-fee in the plaint at the appellate stage. [para 14] 
[535-D] 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 
F 8660 of 2014. 
From the Judgment & Order dated 23.11.2012 of the High 
Court of Uttarakhand at Nainital in Writ Petition No. 376 of 
2012. 
G 
Shyam Divam, Madhvi Divan, Ranjeeta Rohtagi, Manan 
Verma for the Appellants. 
H 
Jayant Bhushan, Rajeev Kr. Singh, Anish Dayal, Siddharth 
Vaid, Bipin B. Singh for the Respondents. 
The Judgment of the Court was delivered by 
SARDAR TAJENDER SINGH GHAMBHIR v. SARDAR 529 
GURPREET SINGH 
R.M.LODHA, CJI. 1. Leave granted. 
2. The appellants are plaintiffs in the suit for declaration 
and injunction. It is not in dispute that adequate court fee in that 
regard was paid by the plaintiffs. Lateran, reliefs were amended 
and prayers for compensation and utilization were also made. 
However, on the amended valuation, there was deficiency in 
payment of court-fee but to make up such deficiency, no order 
was passed by the trial court. 
A 
B 
3. The present respondent Nos. 1 & 2 (defendants in the 
suit) preferred first appeal which was heard by the Additional 
C 
District Judge, Dehradun. In the first appeal, an objection 
regarding deficit court-fee was raised by the defendants. The 
first appellate court, however, observed that while granting 
amendment in the plaint, the trial court did not prescribe any 
time limit in connection with the payment of court-fee and even 
D 
no objection was raised by the defendants in that regard. The 
aspect of deficit court-fee came to the knowledge of the 
plaintiffs at the time of preparation of decree only and, 
therefore, an opportunity deserved to be granted to the plaintiffs 
to make up the deficit court-fee in the interest of justice. 
E 
4. Against this order of the first appellate court, respondent 
Nos. 1 and 2 filed a writ petition under Article 227 of the 
Constit

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